THE HONORABLE RONALD E. LONGSTAFF, United States District

Judge for the Southern District of Iowa, sitting by designation.

_____________

No. 96-1183

_____________

Federal Deposit Insurance *

Corporation, *

*

Appellee, *

*

v. *

*

Melvyn Bell, *

*

Defendant, * Appeal from the United States

* District Court for the

Darlene Bell, * Eastern District of Arkansas.

*

Appellant, *

*

Bell Holdings, Inc., *

*

Defendant, *

*

Bell Equities, Inc., *

*

Appellant. *

____________

 Submitted: November 18, 1996

 Filed: February 6, 1997

____________

Before RICHARD S. ARNOLD, Chief Judge, MAGILL, Circuit Judge, and

LONGSTAFF, District Judge. 1

_____________

MAGILL, Circuit Judge.

This case is a diversity action based on the Arkansas Fraudulent

Transfer Act, Ark. Code Ann. §§ 4-59-201-213, between
 This action was originally brought on March 5, 1992, by the

American Federal Bank, F.S.B. (American Federal) against Melvyn

Bell, Darlene Bell, Bell Holdings, Inc. (Bell Holdings) and Bell

Equities, Inc. (Bell Equities). On June 29, 1994, Melvyn Bell and

Bell Holdings were dismissed as defendants. On August 3, 1994,

Guaranty Federal Bank, F.S.B. (Guaranty Federal) was substituted as

plaintiff in place of American Federal. On May 1, 1996, the FDIC

was substituted as plaintiff in place of Guaranty Federal.

 The Honorable G. Thomas Eisele, United States District Judge

for the Eastern District of Arkansas.

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plaintiff the Federal Deposit Insurance Corporation (FDIC) and defendants

Darlene Bell and Bell Equities, Inc. Darlene Bell and Bell Equities

2

appeal the district court's grant of injunctive relief and partial summary 3

judgment against them, contending that the existence of a contingent

liability on an asset transferred to Darlene Bell creates a question of

fact regarding the value of that asset. The FDIC contends that we do not

have jurisdiction to decide this question at this time because it is a

nonfinal order. We hold that we do have jurisdiction and affirm.

I.

Richardson Savings & Loan, the predecessor in interest to American

Federal and, ultimately, the FDIC, made loans in 1986 and 1987 in the

amounts of $11,550,000.00 and $519,819.20 to Melvyn Bell, the then-husband

of Darlene Bell. Melvyn Bell defaulted on the loans in 1988 and brought

suit against American Federal for breach of contract. American Federal

counterclaimed for the default on the loans and, on July 31, 1991, obtained

a judgment against Melvyn Bell for $11,127,467.70. 

Meanwhile, on March 22, 1991, Darlene Bell filed a complaint for

divorce against Melvyn Bell in Arkansas state court. The divorce was

granted on April 26, 1991, and the Bells entered into a property settlement

agreement. Pursuant to the agreement, Melvyn Bell retained ownership of

Bell Holdings, while Darlene Bell
 The property settlement included a transfer of assets between

Bell Holdings and Bell Equities. In addition, Darlene Bell

received 80% of Melvyn Bell's future net salaries as child support.

See Order Denying Defs.' Mot. for Summ. J. at 3-4 (Nov. 3, 1993),

reprinted in Appellee's Add. at 3-4. 

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acquired ownership of Bell Equities. Based on the valuation schedules

4

submitted by the Bells to the state court, the assets distributed to Melvyn

Bell had a gross value of $33,663,067.00 and liabilities of $27,744,252.00,

for a net value of $5,918,815.00. The assets distributed to Darlene Bell

had a gross value of $31,748,935.00 and liabilities of $24,422,585.00, for

a net value of $7,326,353.00. The state court questioned Darlene Bell as

to the accuracy of the valuation schedules, and Bell confirmed that they

were accurate:

THE COURT: With respect to the valuations on the assets, I

noticed that they're fairly even in terms of value. It looks

like Bell Holdings has about $34 million and you have about $32

million assets, according to these sheets. Do you feel

comfortable with what has been disclosed to you about value and

liability?

MRS BELL: I feel that's pretty accurate. The gentlemen that

worked with us on this, their livelihood depends on their

accuracy, so I would imagine that they wouldn't mislead me

because then they wouldn't have a job.

Order Granting Partial Summ. J. at 4 n.3 (Aug. 4, 1995) (quoting Tr. of

H'rg at 17-18), reprinted in Appellants' Add. at 4.

One of the assets acquired by Darlene Bell and held by Bell Equities

was Red Apple Enterprises, with a gross value of $5,500,000.00, liabilities

of $6,122,075.00, and a negative net value of $622,075.00. See Appellants'

App. at 163 (valuation schedule). A footnote indicated that this entry did

"not include contingent liability of $1.85 million related to Red Apple

Club notes currently owned by The Bank of Ozark." Id.
 The Arkansas Fraudulent Transfer Act provides, in part:

(a) A transfer made or obligation incurred by a debtor is

fraudulent as to a creditor, whether the creditor's claim

arose before or after the transfer was made or the

obligation was incurred, if the debtor made the transfer

or incurred the obligation:

. . . 

(2) Without receiving a reasonably equivalent value in

exchange for the transfer or obligation . . . .

Ark. Code Ann. § 4-59-204.

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On March 5, 1992, American Federal brought the instant diversity

action against Melvyn Bell, Bell Holdings, Darlene Bell, and Bell Equities.

Relying on the Arkansas Fraudulent Transfer Act, American Federal alleged 5

that Melvyn Bell had made a fraudulent transfer to Darlene Bell in their

property settlement because he did not receive the

reasonably equivalent value for the transferred assets. 

During the years of discovery and litigation that followed, the

district court granted partial summary judgment to American Federal and

held, "as a matter of law, [that] Melvyn Bell was either insolvent at the

time of the transfer [of property to Darlene Bell] or was rendered

insolvent by the transfer within the meaning of [the Arkansas Fraudulent

Transfer Act]." Tr. of Telephone Conference of October 18, 1993, at 8,

reprinted in Appellants' App. at 30. On November 3, 1993, the district

court denied summary judgment to the defendants, concluding that the

instant suit was not barred as a defaulted compulsory counterclaim or by

res judicata, the domestic relations exception, the full faith and credit

doctrine, or quasi-judicial immunity. See Order Denying Defs'. Mot. for

Summ. J., reprinted in Appellee's Add. at 1. Following a settlement

agreement, Melvyn Bell and Bell Holdings were dismissed as defendants on

June 29, 1994. Guaranty Federal thereafter became the successor in

interest to American Federal and was substituted as plaintiff in this case

on August 3, 1994.
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On August 4, 1995, the district court granted partial summary

judgment to Guaranty Federal, holding that, based on the valuation

schedules verified by Darlene Bell, Melvyn Bell had transferred at least

$1,407,538.00 to Darlene Bell in excess of what he had retained. Dividing

this in half, the district court held that Darlene Bell and Bell Equities

were liable to Guaranty Federal for a minimum of $703,769.00. See Order

Granting Partial Summ. J. at 5-6, reprinted in Appellants' Add. at 5-6.

The district court also granted prejudgment interest to Guaranty Federal

of 6% per annum from April 26, 1991, through November 15, 1995, in the

amount of $160,693.41, postjudgment interest at 5.45% per annum until paid,

and costs of $415.25, for a total judgment as of November 15, 1995, of

$864,877.66. See Judgment (Nov. 20, 1995), reprinted in Appellants' Add.

at 14. 

On December 7, 1995, Darlene Bell and Bell Equities filed in the

district court a Motion to Reconsider Judgment under Federal Rules of Civil

Procedure 59(e) and 60(b), arguing that the court had erred by failing to

consider the $1.85 million contingent liability described in the valuation

schedules. See Defs.' Mot. to Recons. J. at 2 (Dec. 7, 1995), reprinted

in Appellants' App. at 103. The district court denied this motion, stating

that 

[t]he Court did consider the contingent liability. In fact,

the defendants drew the contingent liability issue to the

Court's attention in the defendants' Brief in Support of

Response of Separate Defendants Darlene Bell and Bell Equities,

Inc., to Plaintiff's Motion for Summary Judgment. . . . Even if

the Court were to reconsider the issue the Court would maintain

its position in relying upon the valuation schedules. It is

generally held that speculative or contingent liabilities

should not be considered in determining the net marital estate.

See, e.g., Hansen v. Hansen, 302 N.W.2d 801 (S.D. 1981); see

also Aaron v. Aaron, 281 N.W.2d 150 (Minn. 1979) (finding that

if potential liability is too speculative, it should not be

considered in the distribution of marital property). The

defendants have offered no new evidence to support the position

that the contingent liability is not speculative. The

defendants
 While the grant of partial summary judgment determined Darlene

Bell's and Bell Equities' liability to Guaranty Federal, the issue

of damages has not yet been finally determined. Although the

district court issued a judgment of $864,877.66, this amount was

determined "solely on the basis of the valuation schedules as they

were presented and approved by the chancellor in the state court

proceedings." Order Granting Partial Summ. J. at 3 n.2, reprinted

in Appellants' Add. at 3. There appears to be a factual dispute as

to whether the valuation schedules overvalued Melvyn Bell's

retained assets:

The Bank [Guaranty Federal] has also alleged that Bell

Holdings was overvalued by at least $7,842,450, based on

the September 5, 1991, foreclosure sale of one of its

properties, Market Street Plaza. While Market Street

Plaza was valued at $12,592,450 on the schedules, it only

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have not offered the notes themselves nor have they argued the

terms of the notes.

Order Denying Mot. to Recons. J. at 2-3 (Dec. 21, 1995), reprinted in part

in Appellants' App. at 100.

On December 19, 1995, the district court granted Guaranty Federal

injunctive relief, enjoining Darlene Bell and Bell Equities from

transferring or encumbering certain assets. The injunction was

specifically premised on the need to protect the judgment entered in favor

of Guaranty Federal and against Darlene Bell and Bell Equities. See Order

Granting Permanent Inj. at 4 (Dec. 19, 1995), reprinted in Appellants' Add.

at 10. On May 1, 1996, the FDIC, as successor in interest to Guaranty

Federal, was substituted as plaintiff-appellee in this matter. Darlene

Bell and Bell Equities now appeal the grant of injunctive relief and the

grant of partial summary judgment holding them liable for at least

$864,877.66.

II.

The parties agree that the district court's grant of partial summary

judgment was not a final order for purposes of determining whether this

Court has jurisdiction. See 29 U.S.C. § 1291; see also Fed. R. Civ. P.

56(c) ("A summary judgment, interlocutory in character, may be rendered on

the issue of liability alone although there is a genuine issue as to the

amount of damages."). The FDIC 6
brought $4,750,000 at the foreclosure sale. If the value

of Market Street Plaza was accepted as its sale value,

then the property received by Darlene Bell would be worth

at least $9,249,988 [more] than that retained by Melvyn

Bell.

Id. On the basis of this limited factual dispute, the district

court held that "[i]f this case proceeds to trial, the Bank

[Guaranty Federal] will be allowed to argue about the overvaluation

of Market Street Plaza, in which case, it might be entitled to an

even larger judgment against Darlene Bell and Bell Equities." Id.

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contends that this Court therefore has no jurisdiction to consider either

the grant of injunctive relief or the grant of partial summary judgment.

We disagree.

Under 28 U.S.C. § 1292(a)(1), this Court has jurisdiction over orders

of the district court "granting, continuing, modifying, refusing or

dissolving injunctions, or refusing to dissolve or modify injunctions,

except where a direct review may be had in the Supreme Court . . . ."

Here, the district court specifically granted an injunction prohibiting

Darlene Bell and Bell Equities from disposing of property without notice

to and consent from the Bank. See Order Granting Permanent Inj. at 4,

reprinted in Appellants' Add. at 10.

The FDIC argues that, despite § 1292(a)(1)'s textual clarity, this

Court does not have jurisdiction to hear an appeal of a grant of injunctive

relief where "the injunctive order is merely incidental to the substantive

relief sought and does not threaten to cause irreparable harm . . . ."

Appellee's Br. at 11. This is simply an incorrect statement of the law of

this Circuit. See, e.g., Morgenstern v. Wilson, 29 F.3d 1291, 1294-95 (8th

Cir. 1994) ("[I]f an interlocutory order expressly grants or denies a

request for injunctive relief, the [requirement of irreparable injury] need
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not be met and the order is immediately appealable as of right under §

1292(a)(1). By contrast, if an order merely has the practical effect of

granting or denying an injunction, the . . . irreparable injury test must

be satisfied . . . ." (interpreting Carson v. American Brands, Inc., 450

U.S. 79 (1981) (citations omitted))), cert. denied, 115 S. Ct. 1100 (1995).

Darlene Bell and Bell Equities have an appeal as of right under §

1292(a)(1) to the district court's grant of injunctive relief against them,

and we therefore have jurisdiction over this order of the district court.

In Fogie v. Thorn Americas, Inc., 95 F.3d 645 (8th Cir. 1996), this

Court described to what extent an appellate court has jurisdiction to

review interlocutory orders of a district court that are related to an

appeal of injunctive relief:

We have jurisdiction to review the district court's issuance of

the injunction under 28 U.S.C. § 1292(a)(1) which provides for

appeal of interlocutory orders granting or refusing to grant

injunctions. Our jurisdiction under section 1292(a)(1) also

extends to the remainder of the appealed order to the extent

the injunction is interdependent with the remainder of the

appealed order. Under this standard, we have jurisdiction to

review all portions of the order that are dependent on the

resolution of the issues necessarily resolved in reviewing the

injunction order. In other words, in addition to the

injunction order, we may review other issues only if they are

inextricably bound up with the injunction. We need not

undertake a review of issues whose resolution is not necessary

to effectively review the injunction.

Id. at 648 (quotations and citations omitted).

We review the district court's grant of injunctive relief for abuse

of discretion. See Goff v. Harper, 60 F.3d 518, 520 (8th Cir. 1995). It

would not be possible for us to determine if the district court abused its

discretion in enjoining Darlene Bell and Bell Equities from encumbering or

transferring assets without also determining if the district court erred,

as a matter of law, in its
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determination that Darlene Bell and Bell Equities were liable for

fraudulently-transferred assets. The district court's grant of injunctive

relief was specifically predicated on its holding that Darlene Bell and

Bell Equities were liable to Guaranty Federal and upon its determination

that its judgment in favor of Guaranty Federal should be protected. See

Order Granting Permanent Inj. at 3-4, reprinted in Appellants' Add. at 9-

10. If Darlene Bell and Bell Equities are not liable, then the district

court necessarily abused its discretion in issuing the injunction. In the

circumstances of this case, therefore, we conclude that we have

jurisdiction to consider the district court's grant of partial summary

judgment.

III.

We review a grant of summary judgment de novo, applying the same

standard as the district court. See Barge v. Anheuser-Busch, Inc., 87 F.3d

256, 258 (8th Cir. 1996). A grant of summary judgment is proper if, after

viewing the evidence in the light most favorable to the nonmoving party,

there exists no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. See id.; see also Fed. R. Civ.

P. 56(c). Mere arguments or allegations are insufficient to defeat a

properly supported motion for summary judgment; a "nonmovant must present

more than a scintilla of evidence and must advance specific facts to create

a genuine issue of material fact for trial." Rolscreen Co. v. Pella Prods.

of St. Louis, Inc., 64 F.3d 1202, 1211 (8th Cir. 1995). See also Kiemele

v. Soo Line R.R. Co., 93 F.3d 472, 474 (8th Cir. 1996) ("The nonmoving

party must do more than show that there is some metaphysical doubt as to

the material facts, and where the record as a whole could not lead a

rational trier of fact to find for the nonmoving party, there is no genuine

issue for trial." (quotations, citations, and alteration omitted)); JRT,

Inc. v. TCBY Sys., Inc., 52 F.3d 734, 737 (8th Cir. 1995) (A nonmoving

party has the burden of demonstrating to the district court "that
 Darlene Bell and Bell Equities also contend that, because the

Arkansas state court that approved the Bells' property settlement

had a statutory obligation to divide the Bells' marital property

equally, see Ark. Code Ann. § 9-12-315, we should consider the

Bells' assets to have been equally divided for the purposes of this

diversity action. We reject this argument.

As noted by the district court:

We presume that a fifty-fifty split was intended under

Arkansas law because the chancellor made none of the

findings that are required before deviating [from] the presumption

of an equal division of marital property. While the chancellor was

understandably not concerned with dividing the property to the

penny, particularly where the parties agreed with a division that

was approximate[ly] an equal division, this Court is so concerned.

Under Arkansas law, the Bank [Guaranty Federal], as a present

creditor of an insolvent debtor, has the right to half of every

dollar transferred by the debtor to Mrs. Bell over the fifty

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at trial it may be able to put on admissible evidence proving its

allegations." (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57

(1986))).

Darlene Bell testified in Arkansas state court that the valuation

schedules used in her property settlement with Melvyn Bell were accurate.

See Order Granting Partial Summ. J. at 4 n.3 (quoting Tr. of H'rg at 17-

18), reprinted in Appellants' Add. at 4. Based on these valuation

schedules, the district court determined that Melvyn Bell retained

considerably less net assets than he transferred to Darlene Bell. See id.

at 5, reprinted in Appellants' Add. at 5. Because of this inequity, the

district court determined that, as a matter of law under the Arkansas

Fraudulent Transfer Act, Melvyn Bell did not receive the reasonably

equivalent value for the transferred property. See id. Based on this

determination, the district court granted partial summary judgment on

Darlene Bell's and Bell Equities' minimum liability for the excessive, and

thereby fraudulent, transfer. 

Darlene Bell and Bell Equities contend that there exists a question

of material fact as to whether Melvyn Bell received the reasonably

equivalent value for the property transferred to Darlene Bell. They argue

that the district court erred in failing to diminish the net value of the

assets transferred to Darlene Bell by the $1.85 million contingent

liability associated with Red Apple Enterprises. Because a question

7
percent to which she was entitled.

Order Granting Partial Summ. J. at 5 n.5, reprinted in Appellants'

Add. at 5. This construction is fully supported by the record of

the state court proceedings, in which the state court declared to

Darlene Bell that, "[w]ith respect to the valuations on the assets,

I noticed that they're fairly even in terms of value. It looks

like Bell Holdings has about $34 million and you have about $32

million assets, according to these sheets." Id. at 4 n.3 (quoting

Tr. of H'rg at 17-18) (describing gross assets, emphasis added),

reprinted in Appellants' Add. at 4. The valuation schedules show

that Melvyn Bell received $1,407,538.00 less in net value than

Darlene Bell. While this disparity in net assets may appear

"fairly even" in a property settlement between consenting parties

pursuant to a marital dissolution, it is rather less even in an

action by a creditor to recover fraudulently-transferred assets

from an insolvent debtor.

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exists as to the value of the
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contingent liability, Darlene Bell and Bell Equities contend that summary

judgment was improper. We conclude that this argument misapprehends the

nature of a contingent liability and the burden placed on a nonmoving party

to defeat a summary judgment motion.

A contingent liability is:

One which is not now fixed and absolute, but which will become

so in case of the occurrence of some future and uncertain

event. A potential liability; e.g. pending lawsuit, disputed

claim, judgment being appealed, possible tax deficiency. . . .

Black's Law Dictionary 321 (6th ed. 1990) (citation omitted). To assume

that a contingent liability necessarily diminishes by its face amount the

value of an asset would be
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absurd; it would mean that every individual or firm that had

contingent liabilities greater than his or its net assets was

insolvent--something no one believes. Every firm that is being

sued or that may be sued, every individual who has signed an

accommodation note, every bank that has issued a letter of

credit, has a contingent liability. . . . There is a

compelling reason not to value contingent liabilities on the

balance sheet at their face amounts, even if that would be

possible to do because the liability, despite being contingent,

is for a specified amount (that is, even if there is no

uncertainty about what the firm will owe if the contingency

materializes). By definition, a contingent liability is not

certain--and often is highly unlikely--ever to become an actual

liability.

In re Xonics Photochemical, Inc., 841 F.2d 198, 199-200 (7th Cir. 1988).

See also In re Chase & Sanborn Corp., 904 F.2d 588, 594 (11th Cir. 1990)

("It is well established, however, that a contingent liability cannot be

valued at its potential face amount . . . .").

To correctly "value the contingent liability it is necessary to

discount it by the probability that the contingency will occur and the

liability become real." Xonics Photochemical, 841 F.2d at 200; see also

In re Davis, 169 B.R. 285, 302 (E.D.N.Y. 1994) ("In order to value a

contingent liability, a bankruptcy court must determine the likelihood that

the contingency will occur, and multiply the total debt guaranteed by that

probability."). Where a liability is contingent on an impossible or an

extremely unlikely event, its value will be nothing or close to nothing,

and will have negligible or no effect on the net value of an asset. In

such a circumstance, a contingent liability need not be considered in

determining the net worth of an asset. See Hansen v. Hansen, 302 N.W.2d

801, 802 (S.D. 1981) ("'Contingent liabilities that may never be paid or

that may be paid only in part need not be deducted in determining net

worth. Speculative contingent liabilities should not be considered in

apportioning the parties' assets for purposes of a property division.'"

(quoting Wallahan v. Wallahan,
 Indeed, we cannot even say that the value of the contingent

liability was somewhere between $0 and $1.85 million, as it appears

that the "liability" may have actually been an asset. Guaranty

Federal alleged, on information and belief, that

not only is the contingent liability referred to by the

defendants no longer in existence, but litigation took

place which resulted in a settlement under which Ms. Bell

actually received rather than paid money.

Pl.'s Resp. to Defs.' Mot. to Recons. J. at 5 (citing in a footnote

Richard H. Upton & R. Ryder Mortgage & Inv. Co. v. Red Apple

Enters. Ltd. Partnership, Cleburne Chancery No. 94-31-1; and

Stephen L. Gershner v. Melvyn Bell, Urban Enters., Inc., &

Southwest Resorts, Inc., Pulaski Circuit No. 95-2649). Darlene

Bell and Bell Equities did not challenge this recitation of

subsequent events, but insisted that

[w]hether the contingent liability was extinguished by

acts subsequent to the transfer between the Bells is

irrelevant and has no bearing on whether reasonably

equivalent value was given, at the time of the transfer.

To suggest otherwise lacks any legal basis or support.

Defs.' Reply to Pl.'s Resp. to Defs.' Mot. to Recons. J. at 4

(emphasis in original). Neither party has submitted the Arkansas

cases cited nor has the issue been argued on appeal.

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284 N.W.2d 21, 26 (S.D. 1979)) (alterations and additional quotations

omitted)).

In this case, Darlene Bell and Bell Equities have never submitted any

evidence regarding the likelihood that the $1.85 million contingent

liability associated with Red Apple Enterprises would ever materialize.

As noted by the district court, "[t]he defendants have not offered the

notes themselves nor have they argued the terms of the notes." Order

Denying Mot. to Recons. J. at 2-3, reprinted in part in Appellants' App.

at 100. Without such evidence, there was no rational means for the

district court to assign a value to the contingent liability. Because

8

Darlene Bell and Bell Equities have failed to meet the burden placed on a

nonmoving party to present evidence demonstrating that a material question

of fact exists, see, e.g., Rolscreen, 64 F.3d at 1211, the
 For the $1,850,000.00 contingent liability on Red Apple

Enterprises to have reduced the value of Darlene Bell's transferred

assets to the equivalent value of Melvyn Bell's retained assets, it

would have been necessary, at the time of the transfer of assets,

for there to have been at least a 76% likelihood that the

contingent liability would occur ($1,850,000.00 x .7608313513514 =

$1,407,538.00). Darlene Bell and Bell Equities failed to present

any evidence which could have supported such a finding and, as a

matter of law, would have been unsuccessful on this point had the

issue been tried by a jury. Because of their failure to present

any evidence supporting the valuation of the contingent liability,

summary judgment was properly granted against them. See JRT, Inc.

v. TCBY Sys., Inc., 52 F.3d 734, 737 (8th Cir. 1995) (A nonmoving

party has the burden of demonstrating to the district court "that

at trial it may be able to put on admissible evidence proving its

allegations." (citing Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 256-57 (1986))). The dissent nevertheless asserts that:

Because the moving party in the present case failed to

properly support its motion for summary judgment

regarding the valuation of the contingent liability, the

nonmoving parties were not required to advance specific

facts demonstrating that a genuine issue of material fact

existed. While it may have been more prudent to resist

the summary judgment motion by advancing specific

evidence creating a contested issue of material fact,

Darlene Bell and Bell Equities' failure to do so should

not result in the grant of partial summary judgment when

the moving party failed to properly support its motion

for summary judgment.

Dissenting Op. at 16-17 (citations and note omitted). We disagree.

It was not merely imprudent for Darlene Bell and Bell Equities to

fail to advance evidence to support their allegations; it was

necessarily fatal to their defense. We do not allow a case to go

forward to trial on the mere chance that a jury will disregard all

evidence and accept the unsupported speculation of a party

litigant. See Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th

Cir. 1992), cert. denied, 507 U.S. 913 (1993) ("To withstand the

appellees' motion for summary judgment, the appellants had the

burden of presenting evidence sufficiently supporting the disputed

material facts that a reasonable jury could return a verdict in

their favor. The object of our review, then, is to determine

whether the appellants submitted sufficient probative evidence that

would permit a finding in their favor on more than mere

speculation, conjecture, or fantasy." (citations, quotations, and

alterations omitted)).

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district court properly granted partial summary judgment.9
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Because the district court properly granted partial summary judgment

against Darlene Bell and Bell Equities, it did not abuse its discretion by

granting injunctive relief to prevent the defendants from transferring or

encumbering certain assets. See Ark. Code Ann. § 4-59-207(a)(3)(i)

(provision of Arkansas Fraudulent Transfer Act authorizing "injunction

against further disposition by the debtor or a transferee, or both, of the

asset transferred or of other property"). Accordingly, we affirm both the

district court's grant of partial summary judgment and its grant of

injunctive relief.

LONGSTAFF, District Judge, concurring and dissenting.

I concur in Part II of the majority's opinion determining that this

Court has jurisdiction to consider the district court's grant of partial

summary judgment. The majority also affirms the district court's grant of

partial summary judgment in Part III of its opinion. Because a question

of material fact exists regarding whether Melvyn Bell received the

reasonably equivalent value for his transferred property, I respectfully

dissent to Part III of the majority's opinion.

As noted by the majority, a "nonmovant must present more than a

scintilla of evidence and must advance specific facts to create a genuine

issue of material fact for trial," to defeat a properly supported motion

for summary judgment. Rolscreen Co. v. Pella Prods. of St. Louis, Inc.,

64 F.3d 1202, 1211 (8th Cir. 1995). However, a "party seeking summary

judgment always bears the initial responsibility of informing the district

court of the basis for its motion, and identifying those portions of 'the

pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any,' which it believes demonstrate the

absence of a genuine issue of material fact." Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986) (quoting Federal Rule of Civil Procedure 56(c)).

In addition, in determining
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whether summary judgment is proper, the evidence must be viewed in the

light most favorable to the nonmoving party. See Barge v. Anheuser-Busch,

Inc., 87 F.3d 256, 258 (8th Cir. 1996). 

To support its conclusion that the moving party established its right

to summary judgment as a matter of law, the majority initially relies upon

the testimony provided by Darlene Bell in an April 26, 1991 hearing in

state court concerning the approval of her property settlement agreement.

In response to a question, Darlene Bell indicated that the "value and

liability" in the schedules used in her property settlement agreement with

Melvyn Bell were accurate. It is true that the valuation schedules showed

that Melvyn Bell received $1,407,538.00 less in net value, absent the

contingent liability, than Darlene Bell. However, the valuation schedules

also showed that Darlene Bell incurred a 1.85 million dollar contingent

liability as a result of the property settlement. Construing Darlene

Bell's testimony in the light most favorable to the nonmoving parties, I

do not believe it supports the finding of an absence of a genuine issue of

material fact concerning the issue of "reasonably equivalent value."

Rather, her testimony indicates that she received reasonably equivalent

value in the property settlement.

Second, the majority discusses the nature of a contingent liability

in concluding that the moving party fulfilled its initial burden. As

recognized by the majority, a contingent liability should be discounted by

the probability that the contingency will occur. See In re Xonics

Photochemical, Inc., 841 F.2d 198, 199-200 (7th Cir. 1988). However, this

does not mean that a contingent liability should not receive any value. 

The record before the district court failed to give any indication

as to what the proper valuation of the contingent liability, at the time

of the property settlement agreement, should be. Because the moving party

in the present case failed to
 Because the moving party, the FDIC, had no evidence

demonstrating that the contingent liability was without value, for

purposes of summary judgment, it must "affirmatively show the

absence of evidence in the record" regarding the value of the

contingent liability. See Hanson v. F.D.I.C., 13 F.3d 1247, 1253

(8th Cir. 1994) (reversing the district court's grant of summary

judgment because the moving party failed to demonstrate that there

was no evidence negating an element of the nonmoving party's case).

As a result of the FDIC acknowledging the existence of the

contingent liability by producing the valuation schedules to

support their motion for summary judgment, "the FDIC would have

needed to have affirmatively pointed to evidence or lack thereof"

that the contingent liability was of no value. See Id. However,

it failed to do so. In addition, the FDIC did not base its summary

judgment motion on the argument that Darlene Bell and Bell Equities

could not produce any evidence to support their valuation of the

contingent liability. Rather, the FDIC asserted that the valuation

schedule, on its face, indicated that Melvyn Bell did not receive

reasonably equivalent value for the transferred property.

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properly support its motion for summary judgment regarding the valuation

of the contingent liability, the nonmoving parties were not required to

advance specific facts demonstrating that a genuine issue of material fact

existed. See Heath v. John Morrell & Co., 768 F.2d 245, 249 (8th Cir.

10

1985) (reversing the grant of summary judgment because the moving party

failed to properly support its motion for summary judgment even though the

nonmoving party failed to present opposing evidence) (citing Adickes v.

Kress & Co., 398 U.S. 144, 160 (1970); Stubbs v. United States, 428 F.2d

885, 888 (9th Cir. 1970), cert. denied, 400 U.S. 1009 (1971)). While it

may have been more prudent to resist the summary judgment motion by

advancing specific evidence creating a contested issue of material fact,

Darlene Bell and Bell Equities' failure to do so should not result in the

grant of partial summary judgment when the moving party failed to properly

support its motion for summary judgment. 

Viewing the record in the light most favorable to the nonmoving

party, the district court erred by concluding that the contingent liability

should not receive any value. Partial summary judgment regarding the value

of the contingent liability and whether Melvyn Bell received reasonably

equivalent value for the
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transferred property should not have been granted. Therefore, I would

reverse the district court's grant of partial summary judgment against

Darlene Bell and Bell Equities. 

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.