### T HE HONORABLE RONALD E. LONGSTAFF, United States Distric t

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, an d LONGSTAFF, District Judge. 1

_____________ MAGILL, Circuit Judge.

Th is case is a diversity action based on the Arkansas Fraudulen t Transfer Act, Ark. Code Ann. §§ 4-59-201-213, between

### This action was originally brought on March 5, 1992, by th e

Amer ican Federal Bank, F.S.B. (American Federal) against Melvy n Bel l, Darlene Bell, Bell Holdings, Inc. (Bell Holdings) and Bel l 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 substit uted 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.
-2- plaintiff the Federal Deposit Insurance Corporation (FDIC) and defendants Darlene Be ll and Bell Equities, Inc. Darlene Bell and Bell Equitie s 2 appeal the district court's grant of injunctive relief and par tial summary 3 judgme nt against them, contending that the existence of a contingen t liabilityon an asset transferred to Darlene Bell creates a question o f fact regarding the va lue 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.

RichardsonSavings & Loan, the predecessor in interest to America n Fed eral and, ultimately, the FDIC, made loans in 1986 and 1987 in th e amounts of $11,550,000.00 and $519,819.20 to Mel vyn Bell, the then-husband of Darlene Bell. Melvyn Bell defaulted on the loans in 1988 and brought sui t against American Federal for breach of contract. American Federa l counterclaimed for the default on the loans and, on July 31, 1991, obtaine d a judgment against Melvyn Bell for $11,127,467.70.

Me anwhile, on March 22, 1991, Darlene Bell filed a complaint fo r divorce ag ainst Melvyn Bell in Arkansas state court. The divorce wa s granted on April 26, 1991, and the Bells entered into a property settlemen t agreement. Pursuant to the agreement, Melvyn Bell retained ownership of Bell Holdings, while Darlene Bell

### The property settlement i ncluded a transfer of assets between

Bell Holdings and Bell Equities. In addition, Darlene Bel l received 80% of Melvyn Bell's future net salaries as child s upport. See Order Denying Defs.' Mot. for Summ. J. at 3-4 (Nov. 3, 1993), reprinted in Appellee's Add. at 3-4.
-3- acqu ired ownership of Bell Equities. Based on the valuation schedule s 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 liabilit ies 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:

TH E 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 ha ve about $32 mil lionassets, according to these sheets. Do you fee l comfortable with what has been disclosed to you abo ut value and liability?
MRS BELL: I feel that's pretty accurate. The gentlemen that wor ked with us on this, their livelihood depends on thei r acc uracy, so I would imagine that they wouldn't mislead m e because then they wouldn't have a job.

Order G ranting Partial Summ. J. at 4 n.3 (Aug. 4, 1995) (quoting Tr. o f H'rg at 17-18), reprinted inAppellants' Add. at 4.
One of the assets acquired by Darlen e Bell and held by Bell Equities

was Red Apple Enterprises, with a gross value of $5,500,000.00, liabilitie s 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 di d "no t include contingent liability of $1.85 million related to Red Appl e 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 i s fraudulent as to a creditor, whether the creditor's clai m arose before or after the transfer was made or th e obligation was incurred, if th e debtor made the transfer or incurred the obligation:

. . . (2 ) Without receiving a reasonably equivalent value i n exchange for the transfer or obligation . . . . Ark. Code Ann. § 4-59-204.
-4- On March 5, 1992, American Federal brought the instant diversit y action against Melvyn Bell, Bell Holdings, Darlene Bell, and Bell Equities

. Relying on the Arkansas Fraudulent Tr ansfer Act, American Federal alleged 5 that Melvyn Bell had made a fraudulent transfer to Darlene Bell in their property settlement be cause he did not receive th e reasonably equivalent value for the transferred assets.
During the years of discovery and litigation that followed, th e distri ct court granted partial summary judgment to American Federal an d held, "as a matter of law, [that] Melvyn Bell was either insolvent at the tim e of the transfer [of property to Darlene Bell] or was rendere d insolvent by the transfer within the meaning of [the Arkansas Fraudulent Transfer Act]." Tr. of Telephone Conference of October 18, 1993, at 8 , reprinted inAppellants' App. at 30. On November 3, 1993, the distric t court denied summary judgment to the defendants, concluding that th e instant suit was not barred as a defaulted compulsory counterclaim or by res judicata, the dom estic relations exception, the full faith and credit doctrine, or quasi-judicial immunity. See Order Denying Defs'. Mot. for Summ
. J., reprinted inAppellee's Add. at 1. Following a settlemen t agreement, Melvyn Bell and Bell Holdings were dismissed as defendants on June 29, 1994. Guaranty Federal thereafter became the successor i n interest to American Federal and was substitutedas plaintiff in this case on August 3, 1994.

### -5- On August 4, 1995, the district court granted partial summar y judgme nt to Guaranty Federal, holding that, based on the valuatio n 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 dis trict 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 inAppellants' Add. at 5-6

. The district court also granted prejudgment interest to Guaranty Federal of 6% pe r annum from April 26, 1991, through November 15, 1995, in th e amount of $160,693.41, postjudgment interest at 5.45% per annum until paid , and cost s of $415.25, for a total judgment as of November 15, 1995, o f $864,877.66. See Jud gment (Nov. 20, 1995), reprinted inAppellants' Add. at 14.

On Dec ember 7, 1995, Darlene Bell and Bell Equities filed in th e district court a Motion to Reconsider Judgment under Federal Rules of Civi l Procedure 59(e) and 6 0(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, statin g that [t] he Court did consider the contingent liability. In fact , the def endants drew the contingent liability issue to th e Co urt's attention in the defendants' Brief in Support o f Response of Separate Defendants Darlene Bell and Be ll Equities, Inc., to Plaintiff's Motion for Summary Judgment. . . . Even if the Court were to reconsider the issue the Court wo uld maintain its position in relying upon the valuation schedules. It i s gen erallyheld that speculative or contingent liabilitie s should not be considered in determining the net mar ital estate. See, e.g. , Hansen v. Hansen , 302 N.W.2d 801 (S.D. 1981); se e also Aaron v. Aaron , 281 N.W.2d 150 (Minn. 1979) (finding that if potential liability is too speculative, it should not b e conside red in the distribution of marital property). Th e defendants have offered no new evidence to support the position that the contingent liability is not speculative. Th e defendants

### While the grant of partial summary judgment determined Darlene

Bell's and Bell Equities' liab ility to Guaranty Federal, the issue of damages has not yet been finally determined. Although th e dis trict court issued a judgment of $864,877.66, this amount wa s determined "solely on the basi s of the valuation schedules as they were presented and approved by the chancellor in the state cour t proceedings." Order Granting Partial Summ. J. at 3 n.2, reprinted inAppellants' Add. at 3. There appears to be a factual dis pute as to wh ether the valuation schedules overvalued Melvyn Bell' s retained assets:
The Ba nk [Guaranty Federal] has also alleged that Bel l Holdings was overvalued by at least $7,842,450, based on the Se ptember 5, 1991, foreclosure sale of one of it s prop erties, Market Street Plaza. While Market Stree t Plaza was valued at $12,592,450 on the schedules, it onl y -6- have not offered the not es 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 Federa l injunc tive relief, enjoining Darlene Bell and Bell Equities fro m transferring or encumbering certain assets. The injunction wa s specifically premised on the need to protect the judgment entered in favor of Guaranty Federal and against Darlene Bell andBell Equities. See Order Granting Permanent Inj. at 4 (Dec. 19, 1995), reprinted inAppellants' Add

. at 1 0. On May 1, 1996, the FDIC, as successor in interest to Guarant y Federa l, was substituted as plaintiff-appellee in this matter. Darlen e Bell and Bell Equities now appeal the grant of injunctive relief and the grant of partial summary judgment holding them liable for at leas t $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 thi s Court has jurisdiction. See 29 U.S.C. § 1291; see also Fed. R. Civ. P

. 56(c) ("A summary judgment, interlocutory in cha racter, 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 valu e

of Market Street Plaza was accepted as its sale value , thenthe property received by Darlene Bell would be wort h at least $9,249,988 [more] than that retained by Melvyn Bell.
Id. On the basis of this limited factual dispute, the distric t court held that "[i]f this case proceeds to trial, the Ban k [Guaranty Federal] will be allowed to argue about the overva luation of Market Street Plaza, in which case, it might be entitled to an even larger judgment against D arlene Bell and Bell Equities." Id.
-7- contends that this Co urt 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 th e district court "granting, continuing, modifying, refusing o r diss olving 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 prohibitin g Darlene Bell and Bell Equities from disposing of property without notice to and c onsent from the Bank. See Order Granting Permanent Inj. at 4 , reprinted inAppellants' Add. at 10.

The FDIC argues that, despite § 1292(a)(1)'s textual clarity, thi s Court does not have jurisdiction to hear an appeal of a grant of injunctiv e relief where "the injunctive order is merely inc idental to the substantive relief s ought and does not threaten to cause irreparable harm . . . . " Appellee's Br. at 11. This is simply an incorre ct statement of the law of this Circuit. See, e.g. , Morgenstern v. Wilson , 29 F.3d 1291, 1294-95 (8t h Cir. 19 94) ("[I]f an interlocutory order expressly grants or denies a request for injunctive relief, the [requirement of irreparable injury] nee d

### -8-

not be m et 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 . . . ir reparable 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)

. Dar lene 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 d escribed to what extent an appellate court has jurisdiction t o revie winterlocutory orders of a district court that are related to a n 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 gran t in junctions. Our jurisdiction under section 1292(a)(1) als o extends to the remainder of the appealed order to the exten t the injunction is interdependent with the remainder of th e appealed order. Under this standard, we have jurisdiction to revi ewall portions of the order that are dependent on th e resolution of the issues necessarily resolved in reviewing the inj unctionorder. In other words, in addition to th e injunction order, we may review other issues only if they are ine xtricablybound up with the injunction. We need no t undertake a review of is sues 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 G off 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 w ithout also determining if the district court erred, as a matter of law, in its

### -9-

determ ination that Darlene Bell and Bell Equities were liable fo r fraudulently-transferred assets. The district c ourt's grant of injunctive rel ief was specifically predicated on its holding that Darlene Bell an d 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 Perman ent Inj. at 3-4, reprinted inAppellants' Add. at 9- 10. If Darlene Bell and Bell Equities are not liable, then the district court necessarily abused its discretion in issui ng the injunction. In the circum stances of this case, therefore, we conclude that we hav e jurisd ictionto consider the district court's grant of partial summar y judgment.

III.

We rev iew a grant of summary judgment de novo, applying the sam e standard as the district court. See Barge v. Anheuser-Busch, Inc. , 87 F.3 d 256, 258 (8th Cir. 1996). A grant of summary ju dgment 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 i s 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 mo tion for summary judgment; a "nonmovant must present
more than a scintilla of evidence and must advance specific facts to creat e
a genuine issue of material fact for trial." Rolscreen Co. v. Pella Prods

. of St. Louis, Inc. , 6 4 F.3d 1202, 1211 (8th Cir. 1995). See also Kiemele

v. Soo L ine R.R. Co. , 93 F.3d 472, 474 (8th Cir. 1996) ("The nonmovin g partymust do more than show that there is some metaphysical doubt as to the materi al 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 genuin e issue for trial." (quotations, citations, and alteration omitted)); JRT, Inc. v. TCBY Sys., Inc. , 52 F.3d 734, 737 (8th Cir. 1995) (A nonmovin g party has the burden of demonstrating to the district court "that

### Darlene Bell and Bell Equ ities also contend that, because the

Arkansas state court that approved the Bells' property settlement had a statutory obligation to divide the Bells' marital propert y equally, see Ark. Code Ann. § 9-12-315, we should consider th e 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 pre sume that a fifty-fifty split was intended unde r Arkansas law because the chancellor made none of the findings that are required bef ore deviating [from] the presumption of an equal division of marital property. While the chancel lor was un derstandablynot concerned with dividing the property to th e penny, particularly where the parties agreed with a division that was approximate[ly] an equal d ivision, this Court is so concerned. Und er Arkansas law, the Bank [Guaranty Federal], as a presen t credi tor of an insolvent debtor, has the right to half of ever y dollar transferred by the debtor to Mrs. Bell over the fift y -10- at trial it may be able to put on admissible evidence proving it s allegations." (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 256-5 7 (1986))).

Darlene Bell testified in Arkansas state court that the valuatio n 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 inAppellants' Add. at 4. Based on these valuatio n schedules, the district court determined that Melvyn Bell retaine d considerably less net assets than he transferredto Darlene Bell. See id. at 5, reprinted inAppellants' Add. at 5. Because of this inequity, the district c ourt determined that, as a matter of law under the Arkansa s Fraudu lent Transfer Act, Melvyn Bell did not receive the reasonabl y equivalent value for the transferred property. See id. Based on thi s determi nation, the district court granted partial summary judgment o n Darlene Bell's and Bell Equities' minimum liabil ity for the excessive, and thereby fraudulent, transfer.

Darlene B ell and Bell Equities contend that there exists a question of mater ial fact as to whether Melvyn Bell received the reasonabl y equivalent value for the property transferred to Darlene Bell. They argue that the district cou rt erred in failing to diminish the net value of the assets transferred to Darlene Bell by the $1.85 million contingen t liabilit yassociated with Red Apple Enterprises. Because a questio n 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 look s like Bell Holdings has about $34 million and you have about $3 2 million assets, according to t hese sheets." Id. at 4 n.3 (quoting Tr. of H'rg at 17-18) (describing gross assets, emphasis added) , rep rinted in Appellants' Add. at 4. The valuation schedules sho w that Melvyn Bell received $1,407,538.00 less in net value tha n Darlene Bell. While this disparity in net assets may appea r "fairly even" in a property settlement between consenting parties pursu ant to a marital dissolution, it is rather less even in a n acti on by a creditor to recover fraudulently-transferred asset s from an insolvent debtor.
-11- exists as to the value of the

### -12-

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 part y to defeat a summary judgment motion.
A contingent liability is:

One which is not now fix ed and absolute, but which will become so in case of the occurrence of some future and uncertai n event. A potential liability; e.g. pending lawsuit, disputed claim, judgment being ap pealed, possible tax deficiency. . . .

Black's Law Dictionary 321 (6th ed. 1990) (citation omitted). To assume that a contingent lia bility necessarily diminishes by its face amount the value of an asset would be

### -13- absurd; it would mean that every individual or firm that ha d contingent liabilities greater than his or its net assets was insolvent--something no one believes. Every firm t hat is being sued or that may be sued, every individual who has signed a n acc ommodation note, every bank that has issued a letter o f credit, ha s a contingent liability. . . . There is a compel ling reason not to value contingent liabilities on th e bala nce sheet at their face amounts, even if that would b e possible to do because the liability, despite beingcontingent, is for a specified amount (that is, even if there is n o unc ertaintyabout what the firm will owe if the contingenc y materi alizes). By definition, a contingent liability is no t certain--and often is highly unlikely--ever to beco me 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 t o disco unt it by the probability that the contingency will occur and th e liabilitybecome real." Xonics Photochemical , 841 F.2d at 200; see also In re Davi s , 169 B.R. 285, 302 (E.D.N.Y. 1994) ("In order to value a contingent liability, a bankruptcy court must determine the likelihood tha t the contingency will occur, and multiply the tot al debt guaranteed by that probability."). Where a liability is contingent on an impossible or a n extremelyunlikely event, its value will be nothing or close to nothing, and will have negligible or no effect on the net value of an asset. I n such a circumstance, a contingent liability need not be considered i n 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 ne t worth. Speculative contingent liabilities should not be considered i n apport ioning the parties' assets for purposes of a property division.' " (quoting Wallahan v. Wallahan ,

### Indeed, we cannot even say that the value of the contingen t

liability was somewhere between $0 and $1.85 million, as it appears that the "liability" may have actually been an asset. Guarant y Federal alleged, on information and belief, that not only is the contingent liability referred to by the de fendants no longer in existence, but litigation too k place which resulted in a settlement under which Ms. Bel l actually received rather than paid money. Pl.'s Resp. to Defs.' Mot. to Recons. J. at 5 (citing in a f ootnote Richar d H. Upton & R. Ryder Mortgage & Inv. Co. v. Red Appl e Ent ers. Ltd. Partnership , Cleburne Chancery No. 94-31-1; an d Ste phen L. Gershner v. Melvyn Bell, Urban Enters., Inc., & Sout hwest Resorts, Inc. , Pulaski Circuit No. 95-2649). Darlen e Bell and Bell Equities did not challenge this recitation o f subsequent events, but insisted that [w]hether the contingent liability was extinguished b y ac ts subsequent to the transfer between the Bells i s irrelevant and has no bearing on whether reasonabl y 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.
-14- 284 N. W.2d 21, 26 (S.D. 1979)) (alterations and additional quotation s omitted)).
In this case, Darlene Bell and Bell Equities have never submitt ed any evide nce regarding the likelihood that the $1.85 million contingen t liability associated with Red Apple Enterprises would ever materialize

. As no ted by the district court, "[t]he defendants have not offered th e not es themselves nor have they argued the terms of the notes." Orde r Denying Mot. to Recons. J. at 2-3, reprinted in part inAppellants' App. at 100. Without such evidence, there was no rational means for th e district court to assign a value to the contingent liability. Becaus e 8 Darlene Bell and Bell Equities have failed to meet the burden placed on a nonmoving party to present evidence demonstratin g that a material question of fact exists, see, e.g. , Rolscreen , 64 F.3d at 1211, the

### F or the $1,850,000.00 contingent liability on Red Appl e

Enterprises to have reduced the value of Darlene Bell's tran sferred assets to the equivalent value of Melvyn Bell's retained ass ets, it would have been necessary, at the time of the transfer of assets, for there to have been at least a 76% likelihood that th e contingent liability would occ ur ($1,850,000.00 x .7608313513514 = $1,407,538.00). Darlene Bell and Bell Equities failed to present any evid ence 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 presen t any evidence supporting the va luation 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 alle gations." (citing Anderson v. Liberty Lobby, Inc. , 477 U.S

. 242, 256-57 (1986))). The dissent nevertheless asserts that:
Bec ause the moving party in the present case failed t o properlysupport its motion for summary judgmen t regarding the valuation of the contingent liability, the nonmoving parties were not required to advance specific facts demonstrating that a genuine issue of material fac t existed. While it may have been more prudent to resist the summary judgment motion by advancing specifi c evid ence creating a contested issue of material fact , Darlene Bell and Bell Equities' failure to do so should not result in the grant of par tial summary judgment when the mo ving party failed to properly support its motio n for summary judgment. Dissenting Op. at 16-17 (citations and note omitted). We di sagree. It was not merely imprudent for Darlene Bell and Bell Equities to fai l to advance evidence to support their allegations; it wa s necessarily fatal to their defense. We do not allow a case to go forward to trial on the mere c hance that a jury will disregard all ev idence and accept the unsupported speculation of a part y litigant. See Gregory v. City of Rogers , 974 F.2d 1006, 1010 (8th Cir. 1992), cert. denied , 507 U.S. 913 (1993) ("To withstand th e ap pellees' motion for summary judgment, the appellants had th e burden of presenting evidence sufficiently supporting the disputed material facts that a reasonable jury could return a verdict i n their favo r. The object of our review, then, is to determin e whether the appellants submitted sufficient probative eviden ce that would permit a finding in their favor on more than mer e speculation, conjecture, or fantasy." (citations, quotations, and alterations omitted)).
-15- district court properly granted partial summary judgment. 9

### -16- Because the district court properly granted partial summary judgment against Darlene Bell and Bell Equities, it did n ot abuse its discretion by granting injunctive r elief to prevent the defendants from transferring or encumb ering certain assets. See Ark. Code Ann. § 4-59-207(a)(3)(i ) (pro visionof Arkansas Fraudulent Transfer Act authorizing "injunctio n against further disposition by the debtor or a t ransferee, or both, of the asset transferred or of other property"). Accor dingly, we affirm both the district court's grant of partial summary judgment and its grant o f 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 mat erial fact exists regarding whether Melvyn Bell received th e reasonablyequivalent 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 properlysupported 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 summar y judgment always bears the initial responsibility of informing the district court of the basis fo r 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 (19 86) (quoting Federal Rule of Civil Procedure 56(c)). In addition, in determining

### -17-

wheth er summary judgment is proper, the evidence must be viewed in th e light most favorable to the nonmoving party. Se e 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 majo rity initially relies upon the testimony provided by Darlene Bell in an April 26, 1991 hearing i n state court concernin g the approval of her property settlement agreement. In respons e to a question, Darlene Bell indicated that the " value an d liability " in the schedules used in her property settlement agreement with Melvyn Bell were accurate. It is true that the valuation schedules showed that Me lvyn Bell received $1,407,538.00 less in net value, absent th e contingent liability, than Darlene Bell. Howeve r, the valuation schedules als o showed that Darlene Bell incurred a 1.85 million dollar contingen t liabili tyas a result of the property settlement. Construing Darlen e Bell's testimony in the light most favorable to the nonmoving parties, I do not believe it supports the finding of an abs ence of a genuine issue of

ma terial fact concerning the issue of "reasonably equivalent value. " Rather, her testimony indicates that she received reasonably equivalen t value in the property settlement.

Second, t he majority discusses the nature of a contingent liability in conclud ing that the moving party fulfilled its initial burden. A s recognized by the majority, a contingent liabili ty should be discounted by the probability that the contingency will occur. See In re Xonic s 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 reco rd before the district court failed to give any indicatio n
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

### Becau se the moving party, the FDIC, had no evidenc e

demonstrating that the conting ent liability was without value, for purposes of summary judgment, it must "affirmatively show th e absence of evidence in the record" regarding the value of th e contingent liability. See Hanson v. F.D.I.C. , 13 F.3d 1247, 1253 (8t hCir. 1994) (reversing the district court's grant of summar y judgment because the moving pa rty 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 th e con tingent liability by producing the valuation schedules t o suppor t their motion for summary judgment, "the FDIC would hav e 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 E quities could not produce any evidence to support their valuation of th e contingent liability. Rather, the FDIC asserted that the va luation schedule, on its face, indicated that Melvyn Bell did not receive reasonably equivalent value for the transferred property.
-18- properlysupport its motion for summary judgment regarding the valuation of the contingent liability, the nonmoving parties were not required t o advance specific facts demonstrating that a genu ine issue of material fact existed. See Heath v. John Morrell & Co. , 768 F.2d 245, 249 (8th Cir

.

10 198 5) (reversing the grant of summary judgment because the moving part y failed to properly support its motion for summar y judgment even though the
nonmov ing 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 b y 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 movin g party failed to properly support its motion for summary judgment. Viewing t he record in the light most favorable to the nonmovin g party, the district court erred by concluding that the contingent liabilit y should not receive any value. Partial summary judgment regarding the valu e of the contingent liability and whether Melvyn Bell received reasonabl y equivalent value for the

### -19-

transferred property should not have been granted. Therefore, I woul d
revers e the district court's grant of partial summary judgment agains t Darlene Bell and Bell Equities.

A true copy.

Attest:

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