This section contains the nature of the case and procedural background.

D entered into the Agreement with Coldwell Banker. Coldwell Banker subsequently assigned the Agreement to P. The Listing period was 12 months. In March 1997, P's agent introduced D to Michael Davis, Marion Vaughn, and Jane Johnson (DVJ), who offered to purchase the Property for $1.3 million. D made a counter-offer that DVJ accepted. The sale never closed, and D returned DVJ's earnest money. In June 1997, DVJ proposed that they form a limited liability company (LLC) with D. DVJ and Sieg signed an operating agreement (the Operating Agreement), forming the LLC, MJTM in September of 1997. D would convey the Property to MJTM and D would receive a 40% interest in MJTM and a preferential return of 9% on future profits. D had a beginning balance of $670,000 in his initial capital contribution account and that MJTM assumed $580,000 of D's debt. The other members of MJTM agreed not to encumber the Property without D's approval. The Operating Agreement stated that the agreed value of the Property was $1.3 million. Furthermore, the Operating Agreement provided, 'No Member shall be personally liable to any other Member for the return of any part of the Members' Capital Contributions.' On January 21, 1998, D transferred title to the Property to MJTM by warranty deed. In January 1998, MJTM borrowed $1.413 million from Zions Bank secured by a lien on the Property. All of the members of MJTM personally guaranteed the loan. MJTM paid off a $300,000 loan to D secured by the Property. P discovered the arrangement with MJTM and demanded its commission of 7% of $1.3 million. D claimed that his contribution of the Property was an investment and not a sale or exchange. P sued. On cross-motions for summary judgment, the trial court ruled in favor of D, holding that the transaction between D and MJTM was not a sale or exchange pursuant to the Agreement because it lacked consideration. The trial court awarded attorney fees to D. P appealed.

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