dissenting.
I am unimpressed with the subterfuge displayed in this record where an unauthorized and unlicensed out-of-state (Colorado) real estate broker employed an Evanston, Wyoming (350 miles away) licensed broker as window dressing for a sale of Wyoming property in Cheyenne to a Wyoming customer, for which a real estate commission was paid in Wyoming. It is singularly inappropriate to sustain this summary-judgment decimation of the Wyoming regulatory system. Compared to the operational Wyoming real estate brokerage law as now to have a disingenuous standard, the question of who gets or keeps this controverted real estate commission is relatively unimportant.
Likewise, it is difficult to define factually or legally why the Wyoming Real Estate Commission is incorrect in record summari-zation in its amicus curiae brief:
“ * * * The fact that the interim listing agreement was drafted and signed in Colorado by one Wyoming property owner does not mean ‘negotiations’ were conducted in Colorado. The subsequent listing agreement was prepared in Colorado on a Wyoming Association of Realtors form and mailed to the Wyoming broker. This fact does not establish that ‘negotiations' were conducted in Colorado. After listing the property, appellee telephoned the ultimate buyer in Laramie, Wyoming and told him about the Cheyenne property. Appellee phoned the owners in Cheyenne and Pennsylvania and told them about the prospective buyer. He obtained and prepared detailed information about the Wyoming property and relayed the information to the Wyoming buyer. The purchase offer was drafted in Wyoming by Attorney Tom Long of Hirst and Applegate, Cheyenne. Since Appellee was the agent for the seller, the purchase offer reflects the terms he had negotiated with the Wyoming buyer. Appellee prepared part of the settlement sheet in Wyoming, attended the closing in Wyoming and received his commission check in Wyoming.
“An examination of W.S. 33-28-102 will show that negotiations took place in Wyoming.
“ ‘(a) As used in this act:
“ ‘(iii) “Broker” means an individual, other than a salesman, or associate broker who, for another and for compensation:
“ ‘(C) Negotiates, offers, attempts or agrees to negotiate the sale, exchange, purchase, rental or leasing of real estate;
*1387“ ‘(K) Assists or directs in the procuring of prospects calculated to result in the sale, exchange, lease or rental of real estate; or
“ '(M) Assists or directs in the negotiation of any transaction calculated or intended to result in the sale, exchange, lease or rental of real estate.’
“Certainly Appellee’s actions constitute activities which should have been conducted by a Wyoming licensee or someone in association with a Wyoming licensee as required by statute.”
If we apply the modem concept followed in conflict-of-law rules as the analysis of facts and factors, 16 Am.Jur.2d, Conflict of Laws § 101, for a methodology to determine application of this transaction to Wyoming, about the only thing not included is a properly licensed Wyoming broker actively involved in the transaction. The property is in Wyoming; the buyer is in Wyoming; the seller is in Wyoming; the sales document was prepared in Wyoming; and the sale was closed in Wyoming in the presence of the out-of-state unlicensed broker. The fact that some intermediate discussion took place in Fort Collins, across the state line in Colorado, is neither convincing nor controlling as far as a requirement that a Wyoming broker be actually involved in addition to selling his name and staying in Evanston.
Surely Wyoming law cannot (or should not) be construed to imply that the only required function of the qualified residential broker is to sign a listing agreement and then otherwise distance himself from the transaction except as some modest fee may be paid to him for the name-use function by the out-of-state, unqualified real estate salesman. The course of telephone calls was part of the negotiating process, but not more completely definitive than attendance at and participation in the final draft of the sales documents, closing and immediate collection of the commission from the real estate proceeds paid in Cheyenne.
Reason and precedent reflect that if everything had been reversed between states, in the state from which Mr. Swear-ingen came to Wyoming to involve himself in this real estate sale, as applied in Colorado, both a criminal penalty and a disallowance of commission would have been engendered. Lemler v. Real Estate Commission, 38 Colo.App. 489, 558 P.2d 591 (1976) (Colorado statute is penal, § 12-61-119, C.R.S.1973); Benham v. Heyde, 122 Colo. 233, 221 P.2d 1078 (1950); Broughall v. Black Forest Development Company, 196 Colo. 503, 593 P.2d 314 (1978); Brakhage v. Georgetown Associates, Inc., 33 Colo.App. 385, 523 P.2d 145 (1974); Cary v. Borden Co., 153 Colo. 344, 386 P.2d 585 (1963). Disallowance on an even more closely identified factual situation is found in Ladner v. Harsh, 239 Miss. 46, 120 So.2d 562 (1960), and Fields v. Macnab, 70 Ore.App. 154, 688 P.2d 409 (1984). See also, Annot, 74 A.L.R.3d 637, Recovery Back of Money Paid to Unlicensed Person Required by Law to Have Occupation or Business License or Permit to Make Contract; Sullivan v. PRC Oil & Gas Co., 148 Mich.App. 427, 383 N.W.2d 641 (1986); Watts v. Andrews, 98 N.M. 404, 649 P.2d 472 (1982).
This decision poorly serves the purpose for which the real estate broker and salesman chapter was enacted to protect “the public in the handling of important and valuable transactions relating to real property.” Toavs v. State by and through Real Estate Commission, Wyo., 635 P.2d 1172, 1174 (1981); Mapes v. Foster, 38 Wyo. 244, 266 P. 109 (1928). The question is how to get to that desired regulation for this transaction involved with Wyoming participants and Wyoming property, differentiated only by the out-of-state unlicensed broker. Wyoming has clearly followed the rule that one of the ways is to deny collection of the commission when unlicensed. Dixon v. Ringsby, Wyo., 405 P.2d 271 (1965); Rosenberg v. Rosenblum, 72 Wyo. 91, 261 P.2d 41 (1953); Owens v. Capri, 65 Wyo. 325, 202 P.2d 174 (1949).
“But under a statute enacted in exercise of the police power of the state expressly making unlawful a single isolated act of an unlicensed real estate broker in negotiating a sale, selling, or buying real estate, the decisions appear to be practical*1388ly unanimous in holding that no compensation can be recovered under such circumstances by an unlicensed person.” 202 P.2d at 177.
A trial evaluation of the Wyoming activities of Ronald N. Swearingen in consideration of the statutory criterion of “any negotiation” would be demonstrably appropriate. The summary-judgment disposition is not supported by this factual record for the decision on the controversial facte as a matter of law, and should not be affirmed by the apparent creation of a strange rule of real estate brokerage law. Cordova v. Gosar, Wyo., 719 P.2d 625 (1986). We need go no further than the definitive analysis of Federal District Judge Kerr, defining the appropriate answer in Doran v. Imeson Aviation, Inc., 419 F.Supp. 586, 588 (D.Wyo.1976):
“Since Doran was not a licensed real estate broker in the State of Wyoming, the contract between Doran and Imeson was void and any actions taken by Doran to sell the business were unlawful and Doran is prevented from bringing this action for his commission under the laws of Wyoming.”
The majority completely misrepresent the essential purpose and function of the residential broker when the unqualified out-of-state salesman (journeyman peddler in colloquial terminology) involves himself with a Wyoming sale of Wyoming real estate. It is a fundamental principle of the real estate industry that the licensed instate broker is required in order to afford protection to the public against the uncontrolled conduct of the nonresident. This “captain of the ship” or responsible-licensee status is emplaced in the law to maintain a state-certificated entity with operational and financial responsibility for the transaction. Merely co-execution of the listing agreement will not legitimatize the nonperformance of the regulatory requirements implicit and explicit in Wyoming statutes, § 33-28-101, W.S.1977, and the regulations adopted in accordance therewith by the Wyoming Real Estate Commission. Swearingen’s recognition of the responsible Wyoming broker principle is demonstrated by his nominal compliance in associating with the Wyoming broker. Unfortunately, as the record re-flects, that relationship, in operation, was only nominal.
“Real estate brokers and salesmen are licensed by the State of Wyoming and required to meet high standards of honesty, integrity, trustworthiness and competency. Theirs is a regulated profession. Failure to satisfy those standards is ground for suspension or revocation of a real estate broker’s or salesperson’s license. An act licensing real estate agents must be construed in the light of an obvious purpose of protecting the public in the handling of important and valuable transactions relating to real property.” Hagar v. Mobley, Wyo., 638 P.2d 127, 136 (1981).
What is evidenced here is the conduct of the Wyoming real estate business by an unlicensed person situated and resident out of the state. Contrary to what the majority suggest, the reciprocal arrangement is not permitted in any other state where the legislature has provided a real estate salesperson licensing act. See, for example, C.R.S.1973, Art. 61, and particularly § 12-61-107 providing for a nonresident license with defined conditions including irrevocable consent to service of process.
I respectfully dissent.