*1 a assignee claim to be the cannot inquiry, in rejected En argument A similar subject and must take purchaser faith good erwest, Corp., su Dyco Petroleum Inc. v. lien. to the There, pre it is the court held that pra. conveying property party that a sumed supra, Further, Thuringer, in v. Collins convey his entire interest deed intends to judgment held that the supreme court the express interest is portion
unless
in
creditor,
garnishment, was
plaintiff
in
conveyance. The
the
ly excepted from
or as-
purchaser
than a
position
no better
upon
that a limitation
court further stated
that, although the
signee with notice and
express
such an
warranty
the
of title is not
pursuant to
attorney had'not filed a notice
exception.
garnishment, such
the
the statute before
prior
garnishment
make the
factor did not
upon
a limitation
while there was
attorney’s lien.
in time to the
warranty
title for the lease with
exception
no
option
purchase, there was
Hence,
proceeded
here
since the bank
lease
conveyance for the
from the trust
repre-
knowledge
Lesher’s
actual
with
Thus, the warran-
option
purchase.
with
duty to
Ansays,
it had a
sentation of
ty
extinguish
did not
intervenor’s
limitation
lienable claim
inquiry
make
whether a
money.
purchase
to the
Enerwest,
Inc. v.
might be made. See
Corp.,
Dyco Petroleum V. Finally, Berkland, base our decision on because we Marriage In re strength deed of trust help of intervenor’s no to the is of evaluating priorities in this Contrary
in the relative -circumstances to the bank. case, conten- there, we need not address Lesher’s it had actual notice of the lienable subsequent concerning intervenor’s tions in the shoes of claim of Lesher and stands pro- assignment an of the acquisition of the defendants.
ceeds. reverse and remand to I would therefore AFFIRMED.
JUDGMENT instructions to enter the trial court with priori- lien
judgment granting the Lesher’s PIERCE, J., concurs. lien. ty over bank’s TURSI, dissents.
TURSI, dissenting. Judge, any signifi- in distinguish
I am
unable
the factual basis of this case
cant manner
Colorado,
of the State of
The PEOPLE
County
in
from those Board
Commis-
Plaintiff-Appellee,
Colo.App.
Berkeley Village,
v.
sioners
(1978)
431,
and Collins v.
(1933).
433,
Thuringer, 92 Colo. WOODARD, Defendant-Appellant. County Commissioners Board of 12-5-119, held that Berkeley Village we § C.R.S., constitutes constructive notice assignee an of a or the lien when at the time of proceeds thereof knows
taking assignment assignor’s that the March such assign- that the position financial is such Rehearing Denied rely attorney in the action have to or’s July Certiorari Denied proceeds to collect his fee. More- over, assignee is under a we held that the attorney in- inquire whether the lien, failing rely on his such
tends to
1213 on the record that should determine court that he has a is aware the defendant of the conse testify, that he knows cogni testifying, and that he is quences stand notwith may he take the zant that contrary advice of counsel. standing the the de- Here, questioned the trial regarding his deci- on the record fendant testify. The he would whether sion about right to and him of his court advised response to a consequences thereof. In his deci- from the court whether “freely and volun- sion not to made, responded affirma- tarily” defendant did, however, stop short tively. The court advising him that the decision expressly make and his alone to or not was attorney’s and that he could coun- not lawyer. While the advice of his termand in this re- was deficient the advisement deficiency that spect, we conclude this require reversal. not presented, we the circumstances Under rule of was sub conclude that the Curtis any that error stantially complied with and People v. McMul minimus. See was de (failure (Colo.App.1986) len, 23 disadvantages of testi warn defendant Gen., Woodard, B. Atty. Charles Duane plain and not er de minimus fying “was Gen., Howe, Atty. Richard H. Deputy Chief Fonda, ror”); People v. Gen., Chan, Forman, and Paul H. Asst. Sol. (failure defendant to advise Denver, Gen., plaintiff-appellee. Atty. for notwithstanding contrary he Vela, Public De- David F. Colorado State not reversal of counsel does advice Gerra, III, fender, Deputy Martin J. ap compliance” with Curtis —“substantial Denver, Defender, for defen- Public State Roelker, 780 proved). See also dant-appellant. P.2d decision was The thrust of Curtis Opinion by Judge STERNBERG. waiv- court to be “that by the summarized Asserting that the trial court committed voluntary, right to must be er of the him that he could by failing to advise error intentional, knowing, and the existence notwithstanding any contrary ad- ascertained waiver should be of effective defendant, lawyer, the vice of his on the record.” by the trial court Woodard, judgment of con- appeals from a affirmatively responded finding jury verdict entered on a viction question about his decision the court’s robbery and aggravated guilty him “freely and voluntar- testify being we While crime of violence. statement ily.” light deficient, affirm the we advisement was depar- dant, perceive do not a sufficient we judgment. from the standard ture Curtis reversal. (Colo. P.2d 504 People v. procedural circumstances, safe
1984) certain established reversal Under such right to to hold- relating to a defendant’s would be tantamount guards litany suffice. prescribed; only precise will litany ing testify. No exact would exalt form over substance the trial To so however, specifies purpose fundamental disserve the Mozee, ruling. People v. Burns, BENNETT, N. Lois Gerald Cf. (Colo.1986). Crockett, Cy Cordova, George Vincent Ege Denning, phers, Norma Francis without
The other contention of error is *3 Glassman, Erickson, ness, merit. David Carl Keller, Kettel, Ro Dave John Louise Judgment affirmed. sales, Trowbridge, Taylor, Joann Leslie FISCHBACH, Ward, concurs. Bradley Welt Maurice William Sloat, ner, Ayer, Kenneth and Robert NEY, J., dissents. Plaintiffs-Appellants, NEY, Judge, dissenting. Curtis, I (Colo.1984) requires a trial FOR The BOARD OF TRUSTEES ensure, record, that a defen- OF NORTHERN COLO UNIVERSITY testify right
dant’s of his is waiver RADO, Karowski, Trujillo, Betsy knowledgeable. As the court there stated: Biffle, Stokes, Beverly Robert Thomas question trial court has a “[T]he Ohanian, Sweeney, Arthur Gail on the record to ascertain Dickeson, Schoettler, Robert De right testify whether waiver of the is fendants-Appellees. complete understanding made with ....”„ rights his agree majority I that the advise- with the by ment of the defendant the trial court of rights by defi- as mandated Curtis was cient in that defendant was not advised not to
that the decision whether or Rehearing Denied June ultimately is his alone and not that of his attorney. Nothing in the record indicates Dec. Certiorari Granted that the decision that the defendant knew was his alone to make. There- fore, that, required it cannot be said as purported waiver of “an intentional
dant’s
relinquishment right.” of a known majority
I with the particular litany;
does how-
ever, that the court that the defendant
assure itself knows
the decision to or not to is his attorney’s.
and not his would conclude response
that a defendant’s to the court’s that his decision not to being freely voluntarily”
“was he is unaware of all the
insufficient when rights.
elements of these
I would therefore reverse the defen- conviction and remand
dant’s
the case for a new trial.