I concur in the majority's reversal of the trial court's summary judgment in favor of the plaintiffs on the defendant's counter-claim. As I view the record, there are questions of material fact with regard to the counterclaim. I would also agree with certain statements of law made by the majority. I have no quarrel with the conclusion that, in areas of conflict, the provisions of the basic agreement are controlling over those contained in the security agreements.
I am unable to agree, however, that this court can assume that the trial court failed to consider the parties' basic agreement when it rendered summary judgment foreclosing the defendant's interest in property "described in" the security agreements. The plaintiffs claimed in their complaint that the defendant was in default under the security agreements and the parties' basic agreement. As the majority notes, the basic agreement was a part of the record before the trial court. If there is any legal ground in the record to sustain the trial court's judgment, it will be affirmed. Police Protective Association of Casper v.City of Casper, Wyo., 575 P.2d 1146, 1148 (1978). By concluding — on a basis which appears speculative at best — that the trial court failed to consider all the documents before it, the majority avoids consideration of a legal ground, presented in and sustained by the record, that would sustain the summary judgment.
One of the plaintiffs' primary grounds for arresting a right of foreclosure was the allegation that the defendant allowed federal tax liens to be filed against the subject property. The questions for this court — had it reached them — are whether there are questions of material fact with respect to this claimed default circumstance, and whether plaintiffs were entitled to judgment, as a matter of law, because of this alleged act of default.
It is undisputed that Paragraph 5 of the parties' basic agreement provides, in pertinent part, that:
"The Buyers shall not have the right to assign, transfer, convey, lease, sublet, mortgage, encumber or in any way alienate any of their rights in said Retail Liquor License until the entire purchase price hereunder, together with all interest thereon is paid in full."
It is also undisputed that the security agreements, secured by the Retail Liquor License and the business inventory, provide, in Paragraph 7(e)(3), that:
"The Debtor shall keep the collateral free from all liens, claims, charges, encumbrances, taxes and assessments."
Paragraph 12 of the parties' basic agreement provides:
*Page 589"The Buyers shall not assign, transfer, convey, lease, let, mortgage, encumber, option or in any manner alienate any of their rights, duties or obligations hereunder without first obtaining the written consent of the Sellers."
Defendant admitted in affidavits that tax liens had been filed against her, but asserted that she had made an agreement with the Internal Revenue Service to send them regular payments. (Williams affidavits, dated December 13, 1977, and January 23, 1978). Defendant further admitted that she received notice, that the plaintiffs considered these filings as constituting a default under the terms of the parties' basic agreement, on or about September 11, 1977 (Williams affidavit, January 23, 1977; See, letter at R. 51-52).
It is undisputed that according to Paragraph 11 of the parties' basic agreement:
". . . if such default is not corrected within thirty (30) days upon the mailing of said notice, the Sellers shall have the right, at any time thereafter, to terminate and cancel all rights of the Buyers under this Agreement. . . ."
In a letter dated October 12, 1977, plaintiffs demanded that the escrow agent turn over the escrowed documents.
Under these undisputed facts it is clear to me that the defendant permitted tax liens to be filed — affecting property covered by the various agreements — and that she failed to cure this alleged default within the time specified under the parties' basic agreement. There are no questions of material fact in this regard. The only question is one of law: whether the defendant's allowing of tax liens to be filed against her and, therefore, the subject property, constituted a default under the parties' basic agreement.
The federal tax statutes — pursuant to which these liens were filed — provide that the amount of tax due, including interest and other costs, "shall be a lien . . . upon all property and rights to property, whether real or personal, belonging to such person." 26 U.S.C. § 6321. There is no question but that the defendant had a right under the parties' basic agreement, to the business inventory and to the retail liquor license. While there may be questions of priority with regard to the various encumbrances on this property — questions which are not presented in this suit — it is, nevertheless, clear that the federal tax liens represented encumbrances, at a minimum, on the business inventory in violation of Paragraph 12 of the parties' basic agreement. Defendant's only response throughout these proceedings is that "the tax liens were being paid." (Appellant's brief, p. 7) Whether the liens were being paid or not does not change the fact that they existed and their existence constituted a violation of the parties' agreement. Plaintiffs gave sufficient notice of the default and were, therefore, entitled to declare a forfeiture under the parties' basic agreement. See, Angus HuntRanch, Inc. v. REB, Inc., Wyo., 577 P.2d 645 (1978).
As a last resort, defendant asserts that the tax liens could not have affected the plaintiffs' security interest in the retail liquor license because § 12-2-110, W.S. 1977 [now § 12-4-601(d), W.S. 1977, 1978 Repl.] indicates that a liquor license shall not be subject to attachment, garnishment, or execution. First, this argument ignores the effect of the liens on the business inventory — which I presume, arguendo, would clearly be subject to execution. Second, I am not at all convinced that a federal tax lien cannot attach to a retail liquor license in Wyoming, thereby potentially effecting a security interest therein.
Following the lead of the decision in Boqus v. AmericanNational Bank of Cheyenne, 10 Cir., 401 F.2d 458 (1968), this court has embraced the concept that a retail liquor license is an article of property with definite economic value as between the licensee and a third party. Johnson v. Smith, Wyo.,455 P.2d 244, 250-251 (1969). See, Note, 5 Land Water L.Rev. 213 (1970). As indicated by these two cases — and by the parties' basic agreement in the present case — a liquor license is property in which a security interest can be perfected. Under the Bogus decision this security interest attaches to the proceeds of a sale or transfer of the liquor license — even though the liquor control authorities retain control over the conditions of such a transfer. See, gen., Gibson v. Alaska Alcoholic Beverage ControlBoard (D.Alaska) 377 F. Supp. 151 *Page 590 (1974); C.Y., Inc. v. Brown, Alaska, 574 P.2d 1274 (1978); and Queen of the North, Inc. v.LeGrue, Alaska, 582 P.2d 144 (1978).
The only decision I could find dealing with whether a federal tax lien can be asserted against a liquor license, held that it could not be so asserted. In re Roberts (D.S.D.) 358 F. Supp. 392 (1973). This conclusion was premised on the view of South Dakota law that a liquor license was nothing more than a personal privilege, and that it vested no property rights in a liquor licensee which could be considered "property" within 26 U.S.C.S., § 6321. It is readily apparent to me that this court has found Wyoming law to be entirely different. I would reason that if a liquor license, in Wyoming, is property that can be subjected to a security interest, then it, likewise, could be subjected to a federal tax lien. I have no doubt, therefore, that the license could be subject to sale — with the liquor control authorities retaining power over any resulting transfer.
Had I been writing the majority opinion, I would have held that the plaintiffs were entitled to a summary judgment on their cause of action, but that the case should be remanded for further consideration of the defendant's counterclaim.