dissenting.
I cannot agree with the result espoused by the majority in this case. I am satisfied that the question which we resolve is whether the Real Estate License Act of 1971, §§ 33-28-101 through 33-28-206, W.S.1977, adopted by the Wyoming legislature, has any efficacy. I recognize that in Battlefield, Inc. v. Neely, Wyo., 656 P.2d 1154 (1983), we did say that we will not assist litigants in avoiding their contractual obligations if we possibly can avoid it. This case is distinguishable from Battlefield, Inc. v. Neely, supra, because, in that case, we were not sterilizing the statute, and there, the party primarily responsible for the statutory infringement lost the case. I am dissatisfied with the result in this case because I am persuaded that Battlefield, Inc. v. Neely, supra, has been extended to justify a conclusion that we will not aid and abet efforts to avoid contractual obligations even if we must ignore statutory provisions that should be enforced.
The majority examines the equities of this situation at length. I do not disagree with the proposition that appellant bargained for the result. As the majority say:
*1385“Clearly, Swearingen, acting as a broker in procuring prospects and being licensed in the state of Colorado, was a nonresident broker.” Ante at 1380.
The thrust of the Wyoming statutes regulating brokers is that Swearingen was not permitted to contract with Bowlerama, Inc. to accomplish this transaction as it actually developed. He was the professional who should have known that. Consequently, I am not persuaded that the equities, if they are material, are as heavily weighted in favor of Swearingen as the majority claim.
Placing some of the majority language in juxtaposition demonstrates the lengths to which the majority go and makes my concern painfully clear. I quote:
“ * * * Swearingen then prepared a listing agreement on a Wyoming exclusive listing form, circulated it to the co-owners and their Cheyenne attorney, then mailed it to Uinta Realty for execution.” Ante at 1379.
# * * * * ⅜⅜
“ * * * Swearingen was in contact with the parties by phone from his Colorado office and visited Wyoming a couple of times concerning the sale.” Ante at 1379.
* * * ⅜ * *
“ * * * Swearingen came to Cheyenne for the closing at the request of appellant’s Cheyenne attorney. He prepared settlement sheets for the closing, renegotiated his commission, reducing it from $108,000 to $61,000 * * Ante at 1379. (Emphasis added.)
* * * * * *
“ * * * The term ‘negotiate’ requires conduct that places one in the position of bargaining with a party to settle the terms of a real estate agreement. * * * There was no error by the trial court in concluding that Swearingen did not conduct negotiations in Wyoming.” Ante at 1382.
The majority opinion is inconsistent internally, both specifically and generally. This court held in Hopkinson v. State, Wyo., 632 P.2d 79 (1981), cert. denied 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982), that one could be guilty of first-degree murder by making arrangements from out of state to commit a homicide in Wyoming. I have no equivocation in saying that if one can commit murder in Wyoming without presence in the state, a result with which I agreed in that case, it is well within the realm of possibility to negotiate for the sale of a business in Wyoming without presence in the state. Obviously, that is precisely what Swearingen did.
The majority quotes from § 33-28-104, W.S.1977, which defines a “broker” by describing activities. The majority then recognizes that Swearingen did those things. Section 33-28-114(b), W.S.1977, encompasses a sanction for violation of the statute by providing liability for a penalty “which penalty may be recovered * * * by any person aggrieved.” The majority suggests that the licensed Wyoming broker, Uinta Realty Company, not Bowlerama, Inc., might be the aggrieved party. In substantially the same breath, however, the majority note that it is unlawful for Uinta Realty to compensate Swearingen for performing any of the acts regulated by the statute except that it may pay a commission to Swearingen if Swearingen did not conduct in this state any other negotiations for which a commission is paid. Section 33-28-110(a), W.S.1977. In the posture in which this case comes to us, the only way that Uinta Realty could be an aggrieved party is if it did not violate the statute because Swearingen paid compensation to Uinta Realty rather than Uinta Realty paying compensation to Swearingen. I suppose that really is what happened in this instance. Nevertheless, I am satisfied that there does exist, at the very least, a substantial and genuine question of fact as to whether Swearingen did these things in violation of the Wyoming statute. Summary judgment was not appropriate.
In sum, I disagree with the majority’s view in this case, and I would reverse the summary judgment entered against Bowl-erama, Inc. I understand that it got what it bargained for in its arrangement with Swearingen. That arrangement was possible only because Swearingen violated the *1386Wyoming statutes regulating real estate brokers. He was the one in a position to know that he was violating the law, and, consequently, he should not be protected in those activities which infringe upon the Wyoming statutes. I perceive a very clear question of fact for the jury as to whether actions of Swearingen constituted negotiations in Wyoming for which the commission was paid. I believe that a finder of fact could conclude that such negotiations occurred in Wyoming, and there would be sufficient evidence to sustain that finding. A case such as this does not lend itself to summary judgment. As the majority acknowledge:
“ * * * The record on appeal must be viewed most favorably to the party opposing the motion, giving to him all favorable inferences that may be reasonably drawn from the record.” Ante at 1380.
I also have a very real concern as to whether the Wyoming Real Estate Commission can accomplish any effective regulation if this court is willing to overlook the cavalier approach Swearingen adopted in this case. If one were to design a textbook example of conduct pursued for the purpose of evading the Wyoming Real Estate License Act of 1971, no better illustration could be found than the facts of this case. Under the circumstances, the policy of enforcing the state statute should override the concern that Bowlerama, Inc. does not come to court with clean hands. Perhaps it does not, but it does come demonstrating a clear violation of the statute. The summary judgment should have been reversed, and I would so hold.