KS VENTURES, LLC an Arizona Limited Liability Company, Plaintiff and Appellee,
WILLIAM M. RUSSELL; K.E. SMITH REVOCABLE TRUST; MYERS REVOCABLE TRUST; KIM RUSSELL; SHARON HUFF; BEN WEIDLING; THE LAMAR COMPANIES; U.S. TREASURY by and through the INTERNAL REVENUE SERVICE; MONTANA SWEETGRASS RANCH HOMEOWNERS' ASSOCIATION, INC.; DOE DEFENDANTS I THROUGH X, inclusive, Defendants, WILLIAM M. RUSSELL, Defendant and Appellant.
Submitted on Briefs: November 28, 2018
FROM: District Court of the Eleventh Judicial District, In
and For the County of Flathead, Cause No. DV-16-389B
Honorable Robert B Allison, Presiding Judge.
Appellant: William M. Russell, Self-Represented, Columbia
Appellee: Martin S. King, Worden Thane P.C., Missoula,
MCGRATH CHIEF JUSTICE.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
Internal Operating Rules, this case is decided by memorandum
opinion and shall not be cited and does not serve as
precedent. Its case title, cause number, and disposition
shall be included in this Court's quarterly list of
noncitable cases published in the Pacific Reporter and
William M. Russell appeals from an Eleventh Judicial District
order granting summary judgment to KS Ventures, LLC, an
Arizona limited liability company (KS Ventures). We affirm.
The material facts are not in dispute. Karen Smith, a
principal in KS Ventures, and Russell were married in 2013.
Russell owned several encumbered properties in Montana (the
Flathead County properties) and in Arizona, which were then
in default. Smith had significant cash resources. The day
before the parties were married, Smith and Russell executed a
written prenuptial agreement, which included:
(5) From time to time, the parties may agree to enter into a
joint business venture. Such venture shall be codified by a
written agreement which shall outline the respective profits,
equity increases, or value each party owns.
On April 25, 2013, Smith and Russell executed and signed an
agreement (Loan Agreement) whereby Smith agreed to loan
Russell a revolving line of credit up to $5, 000, 000. The
Loan Agreement stated that failure to pay real property taxes
and failure to keep other loans on the Flathead County
properties current were events triggering default. Russell
additionally signed a deed of trust in favor of Smith
securing payment and performance of the Loan Agreement and
listing the Flathead County properties. The deed of trust was
recorded. The Loan Agreement contained an acceleration
clause, whereby the debt secured by the deed of trust would
become immediately due in the case of default. Smith assigned
the Loan Agreement to KS Ventures.
Between 2013 and 2016, KS Ventures loaned Russell over $1,
921, 008 to pay creditors for claims arising prior to the
marriage and to protect his collateral.
Smith filed to annul her marriage to Russell in October 2015.
Subsequently, Russell defaulted on the Loan Agreement by
ceasing to make payments on the loan advances and failing to
pay the prior mortgage and real property taxes on the
Flathead County properties. On August 17, 2016, the Superior
Court of Arizona, Maricopa County, issued a Decree of
Annulment, which: (1) annulled the marriage of Smith and
Russell, and (2) found the prenuptial agreement valid and
In May 2016, KS Ventures filed a judicial collection and
foreclosure action against Russell seeking repayment of the
loan advances under the Loan Agreement and foreclosure on the
deed of trust securing repayment.
On July 21, 2017, KS Ventures filed a motion for summary
judgment, which Russell opposed. Russell requested oral
argument on KS Ventures' motion, which the District Court
granted. Russell failed to appear on the date set for oral
argument. Russell then requested the District Court
reschedule oral argument, which the District Court denied. On
March 5, 2018, the District Court granted KS Ventures'
motion for summary judgment, and later, ordered the Flathead
County properties ...