113 Ariz. 44 (1976)
546 P.2d 11
UNITED STATES of America (TREASURY DEPARTMENT, INTERNAL REVENUE SERVICE), Appellant,
v.
GLOBE CORPORATION, an Illinois Corporation, Appellee.
No. 11726.
Supreme Court of Arizona, En Banc.
February 5, 1976.
*46 William C. Smitherman, U.S. Atty., by James P. Loss, Asst. U.S. Atty, Phoenix, Scott P. Crampton, Meyer Rothwacks, Elmer J. Kelsey, William M. Brown, Attys., Tax Div., Dept. of Justice, Washington, D.C., for appellant.
Fennemore, Craig, von Ammon & Udall, by Francis J. Slavin, Jr., Phoenix, for appellee.
STRUCKMEYER, Vice Chief Justice.
The Valley Gin Company, as plaintiff in the Superior Court, commenced this action to determine the proper party to receive $15,694.10, the balance of the proceeds from crops grown on land leased by the Globe Corporation to Lee Wong Farms, Inc. The Superior Court, after authorizing the deposit of the fund with the court, awarded the Valley Gin Company $635.40 as costs and attorneys' fees from the fund and ordered that the Valley Gin Company be dismissed from the action. Both the United States and the Globe Corporation were named defendants. Both filed motions for summary judgment. The court below denied the motion of the United States and granted the motion of the Globe Corporation. The United States has appealed. The judgment is set aside and this cause is remanded with directions.
The facts are not in dispute. Lee Wong Farms, Inc. leased certain lands from the Globe Corporation. The lease, dated December 29, 1966, was for four years and provided for an annual rental of $45,000 payable in equal installments on January 1 and August 1 of each year. Pursuant to the lease, Lee Wong Farms, Inc. was in possession of the demised property in April of 1970, at which time it planted a cotton crop scheduled for harvest in late 1970. The cost of planting and growing the corp was advanced by the Valley Gin Company. In the summer of 1970, Lee Wong Farms, Inc. encountered financial difficulty and was unable to meet its obligations. Consequently, the Valley Gin Company took over the harvesting and processing of the crop and satisfied its claim from the proceeds. The balance was interpleaded with the result as stated.
The United States claimed the fund by reason of certain tax liens filed during June and July of 1970. Globe claimed the fund because Lee Wong Farms, Inc. failed to make the rental payment due August 1, 1970. Globe has asserted both a statutory and a contractual landlord's lien on the fund, either of which it claims is entitled to priority over the federal tax liens. The United States on appeal contends that the statutory landlord's lien was inchoate (was not a perfected security interest) at the time the federal tax liens were filed, that the contractual landlord's lien did not constitute a properly protected security interest under the Uniform Commercial Code, and that neither the statutory landlord's lien nor the contractual landlord's lien is entitled to priority over the federal tax liens. The United States also contends that since its liens are entitled to priority, the trial court erred in awarding Valley Gin Company costs and attorneys' fees.
By the United States Internal Revenue Code, § 6321, there is created a lien in favor of the United States upon all property and rights to property belonging to any person who neglects or refuses to pay his tax liability after demand. The lien arises at the time the assessment is made and continues until the liability for the assessed amount is satisfied or becomes unenforceable by reason of lapse of time. Internal Revenue Code, § 6322. The liens asserted by the United States are based on taxes assessed *47 during May and June of 1970 and recorded pursuant to the authority of § 6323 during June and July of 1970.
Globe asserts a statutory lien by reason of A.R.S. § 33-362(C), reading:
"C. The landlord shall have a lien for rent upon crops grown or growing upon the leased premises, * * * and the lien shall continue for a period of six months after expiration of the term of the lease."
As stated, the United States' position is that Globe's lien was not a perfected security interest and therefore it was not entitled to priority over the federal liens.
Under Arizona law, a landlord has a lien for rent upon crops grown or growing on the leased premises until the rent is paid, A.R.S. § 33-362(C), supra, and the lien attaches at the beginning of the tenancy. In re Menzies, 60 F.2d 1064 (D.C.Ariz. 1932); Dewar v. Hagans, 61 Ariz. 201, 146 P.2d 208, 151 A.L.R. 673 (1944). The lien is for rent due or to become due, Murphey v. Brown, 12 Ariz. 268, 100 P. 801 (1909). The landlord acquires a fixed, specific lien in the amount of the rent due on his tenant's goods and property rather than a mere claim for priority of payment. In re Menzies, supra. The lien exists independent of any proceedings. Dewar v. Hagans, supra.
While agreeing that the Arizona law is as stated, the United States urges that merely because the landlord's lien attaches at the beginning of the tenancy does not mean that it is so perfected as to have priority over the federal tax lien. As to this, a lien may be classsified by the state as choate (specific and perfected) so as to defeat other state liens, but whether it is sufficient to defeat a federal tax lien is a question of federal law. United States v. Pioneer American Insurance Co., 374 U.S. 84, 83 S.Ct. 1651, 10 L.Ed.2d 770 (1963); United States v. Scovil, 348 U.S. 218, 75 S.Ct 244, 99 L.Ed. 271 (1955); United States v. City of New Britain, Conn., 347 U.S. 81, 74 S.Ct. 367, 98 L.Ed. 520 (1954); Kuffel v. United States, 103 Ariz. 321, 441 P.2d 771 (1968).
To have priority over a federal tax lien, a state lien must be choate under federal law. United States v. State of Vermont, 377 U.S. 351, 84 S.Ct. 1267, 12 L.Ed.2d 370 (1964); United States v. Security Trust & Savings Bank, 340 U.S. 47, 71 S.Ct. 111, 95 L.Ed. 53 (1950); T.H. Rogers Lumber Company v. Apel, 468 F.2d 14 (10th Cir.1972). To be choate under federal law, the identity of the lienor, the identity of the property subject to the lien and the amount of the lien must be certain. United States v. City of New Britain, Conn., supra.
Globe's position is that the choate doctrine is no longer applicable because the Federal Tax Lien Act of 1966 was adopted subsequent to the cited cases and that it set new standards for determining when a state lien prevails over a federal tax lien. It is argued that Globe's statutory lien qualifies for priority under the Federal Tax Lien Act of 1966 for either of two reasons. First, because Globe qualifies as a holder of a "security interest" under the Internal Revenue Code §§ 6323(a) and 6323(h)(1).
Section 6323(a) provides that:
"[t]he lien imposed by section 6321 shall not be valid as against any * * * holder of a security interest * * * until notice thereof which meets the requirements of subsection (f) has been filed by the Secretary or his delegate."
Section 6323(h)(1) defines a "security interest" as:
"any interest in property acquired by contract for the purpose of securing payment or performance of an obligation or indemnifying against loss or liability. A security interest exists at any time (A) if, at such time, the property is in existence and the interest has become protected under local law against a subsequent judgment lien arising out of an unsecured obligation, and (B) to the extent *48 that, at such time, the holder has parted with money or money's worth."
However, while Globe's statutory landlord's lien arises out of the landlord-tenant relationship, the lien is not within the meaning of § 6323(a).
The purpose of the Federal Tax Lien Act was to conform the internal revenue laws with the developments in the Uniform Commercial Code, Senate Report No. 1708, House Report No. 1884, 89th Congress, 2d Session (1966). The security interest referred to in the tax act must therefore be read in conjunction with the Uniform Commercial Code.
Article nine of the Uniform Commercial Code does not apply to this statutory lien. A.R.S. § 44-3102(B). A lien which is not protected as a security interest by the Uniform Commercial Code is not a security interest within the meaning of § 6323(a) of the Federal Tax Lien Act. United States v. Sterling National Bank & T. Co. of N.Y., 360 F. Supp. 917 (S.D.N.Y. 1973), aff'd in part, rev'd in part on other grounds, 494 F.2d 919 (2d Cir.1974). See also Plumb, Federal Liens and Priorities, 77 Yale L.J. 605, 680-682 (1968). Because Globe's statutory lien was not protected as a security interest under the Uniform Commercial Code, it is not entitled to priority under § 6323(a) of the Federal Act.
Globe also contends that its statutory lien qualifies for a priority status under the provisions of § 6323(c).
Section 6323(c)(1) reads:
"To the extent provided in this subsection, even though notice of a lien imposed by section 6321 has been filed, such lien shall not be valid with respect to a security interest which came into existence after tax lien filing but which
(A) is in qualified property covered by the terms of a written agreement entered into before tax lien filing and constituting
(i) a commercial transactions financing agreement,
(ii) a real property construction or improvement financing agreement, or
(iii) an obligatory disbursement agreement, and
(B) is protected under local law against a judgment lien arising, as of the time of tax lien filing, out of an unsecured obligation."
Section 6323(c)(3)(A) defines a "real property construction or improvement financing agreement" as:
"an agreement to make cash disbursements to finance
(i) the construction or improvement of real property,
(ii) a contract to construct or improve real property,
or
(iii) the raising or harvesting of a farm crop or the raising of livestock or other animals.
For purposes of clause (iii), the furnishing of goods and services shall be treated as the disbursement of cash." (Emphasis supplied)
Globe contends that it meets the requirements of § 6323(c)(1) since it had entered into a written agreement of lease before the government's lien was filed, which agreement required it to furnish to Lee Wong Farms the lands upon which it raised and harvested a farm crop. Globe construes the word "goods" as including farm lands and so concludes it is entitled to priority status. But we think such a construction is contrary to the meaning of the word "goods" as personal property. Words must be accorded their obvious and natural meaning. Mendelsohn v. Superior Court, 76 Ariz. 163, 261 P.2d 983 (1953).
There are, however, other reasons for denying Globe priority status. The disbursements covered in § 6323(c)(3) were discussed in Senate Report No. 1708, supra. The types of financing agreements covered:
"are generally those involving disbursements to an owner of a property for the *49 construction or improvement of real property, or to a builder for a contract to construct or improve real property, as well as disbursements for the raising or harvesting of farm crops or the raising of livestock or other animals. Protection is limited to interests arising from cash disbursements by the lender except in the case of the financing of a farm crop, livestock, or other animals, where the disbursement may also be in the form of the supplying of goods or services." Senate Report No. 1708, supra page 8, U.S.Code Cong. & Admin.News 1966, pp. 3722, 3729.
The House also refers to the types of disbursements covered:
"a person financing a farm crop is protected to the extent of the value of the seed he furnishes to the farmer to plant a wheat crop and the value of the use of a combine to harvest that crop, as well as cash disbursements he makes to provide funds to pay farm laborers needed to plant and harvest the crop." House Report No. 1884, supra, page 43.
There is no indication whatsoever that the rent for farm lands is included within the coverage.
Furthermore, the term "qualified property" includes only:
"in the case of subparagraph (A) (iii), property subject to the lien imposed by section 6321 at the time of tax lien filing and the crop or the livestock or other animals referred to in subparagraph (A) (iii)." Internal Revenue Code § 6323(c)(3)(B)(iii).
Globe's farm lands are not subject to the lien created by § 6321 and are not entitled to priority over the federal tax liens under Internal Revenue Code § 6323(c).
Since the Federal Tax Lien Act does not give Globe's lien a priority, this case must be determined by the principle first in time, first in right. United States v. City of New Britain, Conn., supra. The priority of the liens depends on the time they became specific and perfected. In House Report No. 1884, cited supra, at page 35, the choate doctrine as expressed in United States v. City of New Britain, Conn., supra, is specifically retained in the new § 6323(a); that is, the state lienor is protected if at the time notice of the tax lien is filed the identity of the lienor, the property subject to the lien, and the amount of the lien are all established. Several federal cases have applied the choate doctrine since 1966. See, e.g., Texas Oil & Gas Corporation v. United States, 466 F.2d 1040 (5th Cir.1972); T.H. Rogers Lumber Company v. Apel, supra. The choate doctrine is still viable and must be met by a lienor in order to prevail over a federal tax lien.
Globe's statutory lien does not meet the choate principle. The amount of Globe's lien was not certain and specific within the meaning of the applicable federal law. True, Globe's lien related back to the date of the making of the lease, the beginning of the tenancy, and was good for all State purposes. Still, under federal law, its lien was inchoate in June and July when the federal tax lien was filed.
"It is clear that Lawler's lien for rent cannot be paid out of the fund interpleaded before the Government's tax lien. Section 6321 does not confer a priority on the lien it creates, but the lien created by its language did attach to all of Walker's property, pursuant to § 6322, when the assessment was made on August 31, 1956. While under Virginia law Lawler has a specific and not merely inchoate lien, which relates back to July 1, 1949, the beginning of the tenancy, and good for all state purposes, under federal law his lien was inchoate at the time the federal tax lien arose and was duly recorded on October 26, 1956, in the proper offices. At the time the federal tax lien attached to Walker's property, he was not in default in the payment of rent, and the distress warrant and writ of attachment were not issued until several months thereafter. Lawler's lien had not been perfected in a federal sense *50 when the federal tax lien came into existence. His lien was only `a caveat of a more perfect lien to come.'" United States v. Lawler, 201 Va. 686, 112 S.E.2d 921 at 926 (1960).
And see United States v. Waddill, Holland & Flinn, 323 U.S. 353, 65 S.Ct. 304, 89 L.Ed. 294 (1945).
Globe also argues that it has a contractual landlord's lien which constitutes a protected security interest and, therefore, it has priority over the federal tax liens. The United States agrees that if Globe had properly recorded its interest in the leased premises it would have had priority over the federal liens, but because Globe only recorded its lease under the index for leases in the Maricopa County Recorder's Office, and not under the index for secured transactions, the lease was not properly recorded as a security interest. Globe replies that it was not required to record its security agreement in order to obtain a priority because A.R.S. § 44-3104(2) excludes landlord's liens from the filing requirements of the Uniform Commercial Code. We, however, are of the opinion that contractual landlord's liens are not excluded from the filing requirements of the Uniform Commercial Code.
The principal test as to whether a transaction falls within Article 9 of the Uniform Commercial Code is whether the transaction was intended to have effect as security. Official Comment 1 to U.C.C. § 9-102 (A.R.S. § 44-3102). Excluded are security interests that arise by statute or common law and not by the consent of the parties. Those cases which have considered the landlord's lien exclusion have concluded that landlord's liens arising out of contract are not excluded from the filing requirements. See In re Leckie Freeburn Coal Company, 405 F.2d 1043 (6th Cir.1969); In re King Furniture City, Inc., 240 F. Supp. 453 (E.D.Ark. 1965); Universal C.I.T. Credit Corp. v. Congressional Motors, 246 Md. 380, 228 A.2d 463 (1967); Dunham's Music House, Inc. v. Asheville Theatres, Inc., 10 N.C. App. 242, 178 S.E.2d 124 (1970). The reasoning of these cases is persuasive. While statutory liens and liens arising from operation of law are excluded from filing by A.R.S. § 44-3104(2), a lien granted a lessor by contract is not excluded by the Uniform Commercial Code. Since the Code's filing requirements apply, Globe's contractual landlord's lien must have been properly filed to have priority.
Arizona enacted the Uniform Commercial Code, A.R.S. § 44-2201, et seq., effective January 1, 1968. Pursuant to the Code, A.R.S. § 44-3123, a financing statement must be filed to perfect all security interests with certain exceptions not here applicable. A.R.S. § 44-3140(A)(1) provided at the time Globe filed its lease that:
"The proper place to file in order to perfect a security interest is as follows:
1. When the collateral is * * * farm products * * * then in the office of the county recorder in the county of the debtor's residence or if the debtor is not a resident of this state then in the office of the county recorder in the county where the goods are kept, and in addition when the collateral is crops in the office of the county recorder in the county where the land on which the crops are growing or to be grown is located." Laws 1967, Ch. 3, § 5.
Since both the debtor's residence and the county in which the land is located was Maricopa County, the financing statement had to be filed in the Maricopa County Recorder's Office. Globe filed its lease with the Maricopa County Recorder on February 6, 1970.
A.R.S. § 44-3141(A) provided at the time Globe filed its lease that:
"A financing statement is sufficient if it is signed by the debtor and the secured party, designates by typing or printing the names and mailing addresses of both the debtor and the secured party and contains a statement indicating the types, *51 or describing the items, of collateral. A financing statement may be filed before a security agreement is made or a security interest otherwise attaches. When the financing statement covers crops growing or to be grown, or timber to be cut, or goods which are or are to become fixtures, the statement must also contain a description of the real estate concerned. A copy of the security agreement is sufficient as a financing statement if it contains the above information and is signed by both parties." Laws 1967, Ch. 3, § 5. (Emphasis supplied)
Unfortunately, the lease is not a part of the record before this Court and, therefore, we are unable to determine whether the lease was sufficient as a financing statement within the meaning of § 44-3141(A).
A.R.S. § 11-462, as it read at the time Globe filed its lease, provided for an index of leases, but not for an index of secured transactions. We also find nothing in the record before us to establish that the Maricopa County Recorder's Office kept an index of secured transactions in February of 1970, when Globe filed its lease. Accordingly, we cannot say whether, as the United States argues, Globe's lease was improperly filed under leases. This case must, therefore, be set aside and remanded to the Superior Court.
If it is determined that Globe's lease was sufficient as a financing statement, the Superior Court must then determine whether the Maricopa County Recorder's Office had established an index for the filing of financing statements under the Uniform Commercial Code at the time Globe filed its lease. If there was an index for financing statements and Globe did not direct that its lease be filed as a financing statement, the court below shall enter judgment in favor of the United States, for we consider the law is correctly set forth in In re Leckie Freeburn Coal Company, supra at 1046,
"When dealing with a multi-purpose document, it is incumbent upon the filing party to disclose to the Clerk the purpose for recording. In the present case the record does not show that Appellants had directed the Clerk to record the lease as a financing statement when they paid the filing fee. * * *
* * * To allow constructve [sic] notice in this case would defeat the purposes of the recording statutes. One object of filing a financial statement is to insure a bona fide purchaser that his title will not be encumbered. For the Court to hold that the filing of this instrument as a lease provided constructive notice to those searching the records for a financing statement would be wholly illogical."
Finally, the United States questions the right of the trial court to award Valley Gin Company costs and attorneys' fees out of the fund. As stated, Valley Gin Company was dismissed from the action by the trial court after it was ordered to deposit the crop proceeds with the Clerk of the Superior Court, less costs and attorneys' fees. The United States did not object to the order allowing costs and attorneys' fees and has not named the Valley Gin Company as an appellee in this appeal. Claimed errors which are not called to the attention of the lower court will not be considered on appeal. City of Tucson v. Wondergem, 105 Ariz. 429, 466 P.2d 383 (1970); Milam v. Milam, 101 Ariz. 323, 419 P.2d 502 (1966). Since the United States did not object to the award of costs and attorneys' fees in the court below, the asserted error will not be considered in this Court.
It is ordered that the judgment herein is set aside and this cause is remanded with directions.
CAMERON, C.J., and HAYS, HOLOHAN and GORDON, JJ., concurring.


268 Minn. 448 (1964)
129 N.W. (2d) 772
WEYERHAEUSER COMPANY (RILCO LAMINATED PRODUCTS DIVISION)
v.
NELS HVIDSTEN AND ANOTHER.
No. 39,278.
Supreme Court of Minnesota.
July 10, 1964.
*449 Culhane & Culhane and Sletten Olson, for appellant.
Brink & Sobolik, for respondents.
KNUTSON, CHIEF JUSTICE.
This is an appeal from an order of the district court denying plaintiff's motion for amended findings or for a new trial.
Defendants are father and son engaged in farming in Marshall County in this state. Rilco Laminated Products Division is a division of Weyerhaeuser Company, a corporation, plaintiff in this action, and for the purposes of this case Weyerhaeuser Company and Rilco Laminated Products Division may be considered one and the same and will be referred to as Rilco.
In the early part of 1960, defendants became interested in constructing a potato warehouse in Stephen, Minnesota, on the right-of-way of the Great Northern Railway Company. While the railway company was joined as a party originally, it was stipulated that the action could be dismissed as against it. Ferragut Construction Company, *450 Fargo, North Dakota, was in the business of constructing potato warehouses and other things. James S. Ferragut was an officer and probably the sole owner of Ferragut Construction Company and C & F Sales Company, which for purposes of this decision may be considered as one and the same with Ferragut Construction Company. John Ferguson, who will be referred to hereinafter, was a service engineer for Weyerhaeuser Company and, as such, was a representative also of Rilco.
On May 19, 1960, defendants entered into a contract with Ferragut Construction Company for the construction of a potato warehouse in Stephen at a cost price of $80,277. The contract provided for early commencement of the work and completion by August 25, 1960. It provided that payments would be made each month upon statements issued by the contractor, with a limited amount to be held back until completion of the work. The construction was to be in accordance with plans and specifications prepared by Rilco and Ferragut Construction Company. Contemporaneously with the execution of the contract, defendants signed an agreement with Rilco under which they agreed to issue their checks each month for payment of labor and materials in the joint name of Ferragut Construction Company, Inc., and Rilco Laminated Products.
Up to September 13, 1960, no payments had been made on the contract. The work was not progressing according to schedule, and defendants were apprehensive that it would not be completed in time to house their potato crop, which was then being dug. On September 13, a meeting was arranged between James Ferragut, representing his company; Ferguson, representing Rilco; Nels Hvidsten, representing defendants; and Warren A. Saetre, who was then acting as defendants' attorney, in Saetre's office in Warren, Minnesota, for the purpose of procuring some payment on the contract. At that time, Rilco had furnished material which amounted to the sum of $36,673.41. It wanted all this money. Hvidsten contended that the work done up to that time was worth only $40,000. He wanted lien waivers for whatever was to be paid. After a telephone call by Ferguson to his company, the group was informed by Ferguson that Rilco would not furnish lien *451 waivers until it was paid what it was owed in full. After further discussion, Hvidsten prepared a check for $50,000, payable jointly to Rilco Laminated Products and Ferragut Construction Company, and delivered the check to Ferguson. On it appears: "Part payment on contract labor & materials." Contemporaneously with the execution of this check, Saetre, on behalf of defendants, prepared a letter, which was signed by Nels Hvidsten, in which it was said:
"We are enclosing herewith our check in the sum of $50,000.00 payable to you and the Rilco Laminated Products Company. This is a part payment on our contract dated May 19, 1960. This payment is made to you upon condition you file with us mechanic's lien waivers from all materialmen and laborers including the following: [Eleven claimants are thereafter listed, including Rilco Laminated Products.]
"We also will want adequate assurance from you that all workman have been paid and that no liens will be filed by any of them.
"The balance owing on this contract will be paid to you upon completion of the building and acceptance of same by us."
This letter was delivered to Ferragut in the presence of Ferguson.
Thereafter, Ferragut endorsed the check and sent it to Rilco. Rilco in turn endorsed the check, and on September 16, 1960, credited the whole amount to the account of defendants, showing a credit balance of $13,326.59, which represented payment above what Rilco then had coming. Rilco then drew its check payable to C & F Sales Company and mailed it to Jim Ferragut, C & F Sales Company, in Fargo, North Dakota, with a letter reading:
"Dear Jim:
"Attached is our check for $24,057.50 refund on the $50,000.00 Hvidsten check you submitted.
"Mr. Mason has kindly agreed not to deduct the entire amount of our Hvidsten account to assist you in your other liabilities on this project. We will be looking forward to payment of the remaining balance in about two weeks, when you receive the balance of $37,000.00 from Mr. Hvidsten." (Italics supplied.)
Ferragut never used any part of this remittance to pay for any labor *452 or material on this job. Shortly thereafter he became insolvent and went into receivership, leaving many unpaid bills on the job. As a matter of fact, he did not pay any of the bills on this contract. Liens were filed by laborers and materialmen, the exact amount of which does not appear from the record, but, in any event, Ferragut later authorized defendants to settle these outstanding bills up to the amount of the balance due on the contract. It is conceded that, together with the $50,000 payment made on September 13, defendants have paid out more for work and material than the contract price which they were obligated to pay to Ferragut.
Both Nels Hvidsten and Warren Saetre testified that at the meeting on September 13 both Ferragut and Ferguson were informed that Rilco was to take out of the $50,000 check all it had coming. This is disputed by Rilco, its contention being that it was to take out of the check only its proportionate share and that it still has $10,777.47 coming. This amount includes $46.56 for material furnished after September 13, over which there is no dispute. Inasmuch as defendants contended that Rilco had been paid in full, they refused to pay the former amount, and Rilco thereupon filed a mechanics lien and brought this action to foreclose it.
Plaintiff's principal contention is that the testimony of Hvidsten and Saetre as to the instructions given to Ferragut and Ferguson on September 13 was inadmissible under the rule prohibiting parol evidence to vary or contradict the terms of a written contract or instrument. The trial court admitted this evidence over the objection of plaintiff on the theory that Rilco was not a party to the instrument and therefore could not invoke the parol evidence rule. If the testimony of Hvidsten and Saetre is admissible, the evidence amply sustains the finding that Rilco accepted the $50,000 check upon condition that it would take out of it all it had coming and file a lien waiver for the amount received; that it did in fact receive payment in full and credited the Hvidsten account for more than enough to discharge the account; and that when it remitted to Ferragut part of what it had coming it did so in direct violation of the conditions upon which it had accepted the check and thereupon took its own chances of being paid by Ferragut. As far as *453 defendants are concerned, the debt was paid. The remittance to Ferragut was in effect an advance, for the repayment of which Rilco relied entirely upon the credit of Ferragut.
1-2. The trial court held that the testimony of Hvidsten and Saetre was admissible for the reason that Rilco was not a party to the contract.[1] Even if it is admitted that Rilco, as a copayee of the check and therefore bound by the letter of instructions as to its application, was a party to the contract, the testimony of Hvidsten and Saetre did not offend the parol evidence rule in this case. A debtor may direct where a payment is to be applied.[2] Where a debtor directs payment in a certain way, parol evidence is admissible to establish such direction.[3]
3. Where a written instrument is ambiguous or incomplete, an oral agreement made contemporaneously with it is admissible, not to vary the terms of the written instrument but to explain the intentions of the parties and their subsequent conduct.[4] The general rule is stated in Kane v. The Oak Grove Co. 221 Minn. 500, 504, 22 N.W. (2d) 588, 590, as follows:
"* * * Although preliminary negotiations cannot be allowed to contradict or vary the plain terms of a written contract purporting to integrate the entire transaction, nevertheless, where the terms or words used are ambiguous or reasonably susceptible of more than one interpretation, such negotiations may be considered in order to determine the meaning and intent of the parties."[5]
*454 4. Where a written instrument does not show the whole agreement of the parties, parol evidence is admissible to show the parts omitted.[6]
5. It is the contention of plaintiff that at the time the $50,000 check was delivered on September 13 there were bills outstanding amounting to approximately $68,000. It further contends that, inasmuch as the $50,000 would not pay all the outstanding bills listed in the letter of instructions, Rilco and the others were entitled to only a pro rata share of the payment made. The trouble with this contention is that it goes directly contrary to the letter of instructions, which specifically required that lien waivers be furnished for all payments made out of the check. At best, it must be said that the letter of instructions was ambiguous or incomplete in that it failed to state who should be paid and how much if the check was insufficient to pay all the claimants listed in the letter of instructions. Under these circumstances, parol evidence was admissible to resolve the ambiguity, and the testimony of Hvidsten and Saetre, if accepted by the factfinder, clearly established that Rilco was to take all it had coming out of the check as joint payee. Rilco had no right to cash the check at all unless it adhered to the conditions upon which it was delivered.
6. Plaintiff also complains of the fact that when defendants made settlement with other claimants after being authorized to do so by Ferragut, they ignored the provisions of the original agreement with Rilco that checks should be made payable jointly to Ferragut and Rilco. At the time defendants settled with other claimants Ferragut was admittedly insolvent. Rilco had been paid in full except for $46.56, which the court allowed in this action, as far as defendants were concerned. There was no longer any need to protect Rilco, and it is not in a position to complain. Defendants had no performance bond. Upon the insolvency of Ferragut, defendants were forced to step in and make *455 good on Ferragut's obligations or run the risk of having liens filed against their building. We fail to see how Rilco could be hurt as long as it received all it had coming from defendants. To be sure, if payment had been made jointly to Ferragut and Rilco according to the original agreement, which then had become impossible of performance by virtue of Ferragut's insolvency, Rilco might have been able to collect the balance which it had coming from Ferragut, but that would have left defendants where they still would have had to pay the amount over again to other claimants or be confronted with mechanics liens that they would have to discharge or lose their building. Rilco's loss, if any, was due entirely to its own reliance on the credit of Ferragut after it had enough money in its possession to be paid in full, and if anyone must stand the loss it is only fair that the one who made it possible should do so. We find no reversible error.
Affirmed.
NOTES
[1]  Schlecht v. Schlecht, 168 Minn. 168, 209 N.W. 883; Alton v. Hecht, 184 Minn. 271, 238 N.W. 482; Johnson v. Mugg, 261 Minn. 451, 113 N.W. (2d) 1; State, by Lord, v. Rust, 256 Minn. 246, 98 N.W. (2d) 271; 2 Jones, Evidence (5 ed.) § 483; 7 Dunnell, Dig. (3 ed.) § 3396.
[2]  A.Y. McDonald Mfg. Co. v. Lima, 187 Minn. 240, 244 N.W. 804; Martin Brothers Co. v. Lanesboro Co-op. Merc. Co. 198 Minn. 321, 270 N.W. 10.
[3]  Rugland v. Thompson, 48 Minn. 539, 51 N.W. 604; Minneapolis Brg. Co. v. Yahnke, 148 Minn. 178, 181 N.W. 331.
[4]  Fountain v. Oreck's Inc. 245 Minn. 202, 71 N.W. (2d) 646. See, also, Tiedt v. Johnson, 151 Minn. 288, 186 N.W. 779; Germania Bank v. Osborne, 81 Minn. 272, 83 N.W. 1084.
[5]  See, also, Wm. Lindeke Land Co. v. Kalman, 190 Minn. 601, 252 N.W. 650, 93 A.L.R. 1393; Lundstrom Const. Co. v. Dygert, 254 Minn. 224, 94 N.W. (2d) 527; 2 Conrad, Modern Trial Evidence, § 819; 2 Jones, Evidence (5 ed.) § 484; Steller v. Thomas, 232 Minn. 275, 45 N.W. (2d) 537.
[6]  See, Jimmerson v. Troy Seed Co. 236 Minn. 395, 53 N.W. (2d) 273.


104 Ariz. 280 (1969)
451 P.2d 609
Jesus RODRIQUEZ and Anita Rodriquez, husband and wife, Appellants [Respondents],
v.
Donald Milo WILLIAMS and Billie June Williams, husband and wife; and Navajo Freight Lines, Inc., a corp'n, Appellees [Petitioners].
No. 9452-PR.
Supreme Court of Arizona, In Banc.
March 13, 1969.
*281 Charles Christakis, Phoenix, for appellants.
McKesson, Renaud, Cook, Miller & Cordova, Phoenix, for appellees.
UDALL, Chief Justice:
Plaintiffs sued defendants for personal injuries received in an automobile accident. A jury rendered a verdict in favor of defendants, and plaintiffs appealed to the court of appeals where the case is docketed as # 1 CA-CIV 890.
Shortly thereafter, the trial judge informed counsel for both parties, that the superior court clerk had inadvertently destroyed all of the exhibits in the case. Plaintiffs promptly moved for a new trial. The trial judge properly denied the motion for the reason that his jurisdiction ceased upon perfection of the appeal. This principle is well settled in Arizona. State v. Ruben Federico, 104 Ariz. 49, 448 P.2d 399. Any other rule would permit a trial court *282 and an appellate court to consider the same case at the same time. This would make it possible for the trial court to award a new trial on the same day that the appellate court affirmed the judgment. A rule allowing such a result would be workable.
Appellants then filed a motion for a new trial in the court of appeals, alleging that the destruction of the exhibits was not due to any fault on their part; that the exhibits were material and essential to their appeal; and that they could not be replaced. Appellees resisted the motion, citing Yerger v. Bross, 68 Ariz. 104, 201 P.2d 121, for the proposition that an appellate court's jurisdiction on appeal is confined to reviewing judgments of lower courts; that a motion for a new trial is an original rather than an appellate proceeding; that an appellate court, therefore, has no jurisdiction to hear a motion for a new trial.
In so far as Yerger, supra, holds that a motion for a new trial is not a proper pleading to file in an appellate court, we agree. State v. Davis and Sturgeon, 104 Ariz. 142, 449 P.2d 607. The reason for this rule is that an appellate court is neither equipped, nor intended, to function as a forum for hearing evidence or determining issues of fact. Such proceedings properly belong in the trial court.
However, it does not follow from Yerger, supra, that there is no remedy for an appellant who finds that after perfecting his appeal, there is newly discovered evidence, as in Davis, supra, or that parts of the record are missing, as in the instant case. The appellate courts of this state were created by the Arizona Constitution, Articles 6(4) and 6(9), A.R.S., to hear and decide appeals, and they have inherent power to make any orders necessary to carry out those functions. In the now famous words of John Marshall, in M'Culloch v. Maryland, 4 Wheat 316, 421, 4 L.Ed. 579, 605:
"Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist [sic] with the letter and the spirit of the constitution, are constitutional."
The Supreme Court of Delaware states the principle in these words:
"Our jurisdiction over a case tried below attaches when the appeal is filed. We have the power, we think, to order such further proceedings as may insure the completion or re-taking of the lost testimony in order to protect our jurisdiction and to protect the appellant's right of appeal, temporarily impaired by no fault of her own." Moore v. Moore, Del., 1 Storey 258, 144 A.2d 765 (1958).
What, then, is a litigant's remedy when, because of new evidence or because of a loss of an essential part of the record, his appeal will not be able to give him justice?
In a criminal case, he should file in the court in which the appeal is pending, a motion to suspend the progress of the appeal and to reinstate the trial court's jurisdiction over the case for the limited purpose of hearing evidence, making findings, and entering an order granting or denying a new trial. As we said in State v. Sims, 99 Ariz. 302, 409 P.2d 17:
"Our order directing the superior court to determine the supplementary motion for a new trial was a remand for a limited purpose and reinstated the jurisdiction in the superior court to take the necessary and appropriate action."
In a civil case, the situation is somewhat different. The prevailing party in the lower court has won the case. We cannot lightly deprive him of his victory. R.C.P. 59(d), 16 A.R.S., requires that a motion for a new trial in a civil case be filed within 10 days (except when based upon new evidence, in which case it must be filed before the expiration of the time allowed for appeal).
On the other hand, while the appellee has won a valuable right, the appellant's right to a meaningful appeal, is also valuable. When an essential part of the record has been lost without any fault on the part of *283 the appellant, a refusal to grant relief is final and irrevocable and there is no way that the appellant can rectify an erroneous judgment. Obviously, no matter which way this court decides the case, one party's justice is going to be less than complete. But that result is due to the losing of the record, not to our failure to render a just decision.
There are many ways that parts of the trial record can become unavailable. The courthouse may burn down. The court reporter may die or become disabled. The clerk may, by mistake, destroy the exhibits, as in the instant case. When such occurrences are clearly proved, the appellant is entited to all the relief possible. In some cases, the missing parts may not be essential. In other cases, it may be possible to reconstruct the lost parts by stipulation or findings, pursuant to R.C.P. 75(h). All of these situations involve facts concerning which evidence must be taken, and findings made. Perhaps some witnesses may be recalled, if a point arises upon which the parties cannot agree and the trial judge cannot remember. All such procedure can best take place in the trial court, which has lost jurisdiction because of the filing of the appeal.
The proper procedure, therefore, is to file in the court in which the appeal is pending, a motion to suspend the progress of the appeal and to reinstate the trial court's jurisdiction over the case for the limited purpose of reconstructing the record. Appellant should attach to his motion, a verified statement of facts showing his right to such relief. Among such facts would be the cause of the loss of the record, the materiality of the lost items, the impossibility of reproducing them, etc.
If the motion is granted, the trial court should assist counsel to overcome the loss of the missing records, and should determine whether the allegations in appellant's statement are true and sufficient, whether he has properly cooperated in the attempt to reconstruct the record, etc.
We have frequently held that we prefer to determine cases on their merits rather than on points of procedure. Colboch v. Aviation Credit Corp., 64 Ariz. 88, 166 P.2d 584. We have also held that we look to substance rather than to form. Goodman v. State, 96 Ariz. 139, 393 P.2d 148. We, therefore, can and do treat the motion for a new trial filed in the instant case, as a motion to suspend the progress of the appeal and to reinstate the trial court's jurisdiction over the case for the limited purpose of reconstructing the record. If the record cannot be supplied and appellant cannot present a meaningful appeal then, consistent with our views expressed in Yerger v. Bross, supra, the appeal must be dismissed.
The case is remanded to the court of appeals for the entry of an order consistent with this opinion.
LOCKWOOD, V.C.J., and STRUCKMEYER, McFARLAND and HAYS, JJ., concur.


540 U.S. 936
ANDERSv.UNITED STATES.
No. 03-6105.
Supreme Court of United States.
October 6, 2003.

1
Appeal from the C. A. 4th Cir.

2
Certiorari denied. Reported below: 68 Fed. Appx. 444.


620 P.2d 652 (1980)
B.J.B.A., Natural Mother, Appellant,
v.
M.J.B. and F.G.B., Adoptive Parents, Appellee.
No. 4733.
Supreme Court of Alaska.
November 21, 1980.
*653 Bruce Horowitz, Alaska Legal Services, Juneau, for appellant.
Ty R. Settles, Eckert, Kalamarides & Associates, Anchorage, for appellees.
Before RABINOWITZ, C.J., CONNOR, BURKE and MATTHEWS, JJ., and COOKE, Superior Court Judge.

OPINION
MATTHEWS, Justice.
On March 9, 1978, B.J.B.A., the natural mother of M.R.B., flew to Anchorage with her child from their home in the state of Washington to place the child for adoption with M.J.B. and F.G.B. Upon her arrival, the natural mother was transported to the office of the attorney for the adoptive parents where, unaccompanied by counsel, she signed a consent to adoption and waiver of notice form. She then returned to Washington that same afternoon.
On May 23, 1978, the natural mother unsuccessfully attempted to notify the adoptive parents by telephone of her intention to withdraw her consent to the adoption. On May 24, a hearing was held before the probate master on the appellees' petition for adoption. The master indicated that *654 she would wait until at least June 2 before closing the proceedings to allow for filing of an adoption investigation report pursuant to AS 20.15.100.[1]
On May 27, the natural mother notified the master by wire of her desire to withdraw her consent.[2] On May 30, the probate master notified the natural mother that, based on the March 9 consent, "there appears to be no reason to prevent entry of a decree" of adoption, but that an appeal from the decree could be taken. On June 5, before filing of the investigation report and without finding a waiver of the report to be in the best interest of the minor child,[3] the master recommended that the petition be granted. On the same day the superior court, relying on the probate master's recommendation, but unaware of the natural mother's attempted withdrawal of consent, signed and entered the decree of adoption. The adoption investigation report was filed with the court on June 12.
On June 15, the natural mother moved for relief from the decree, a new trial, and interim visitation rights. This motion was denied, after various delays,[4] on October 10, 1979, and this appeal followed.
The issues here involve construction of AS 20.15.070, which provides:

Withdrawal of Consent. a) A consent to adoption may not be withdrawn after the entry of a decree of adoption.
b) A consent to adoption may be withdrawn before the entry of a decree of adoption, within 10 days, by delivering written notice to the person obtaining the consent, or after the 10 day period, if the court finds, after notice and opportunity to be heard is afforded to petitioner, the person seeking the withdrawal, and the agency placing a child for adoption, that the withdrawal is in the best interest of the person to be adopted and the court orders the withdrawal.
The natural mother contends that her consent was invalid because the consent to adoption form did not include a statement of her right to withdraw the consent within ten days. She argues that such a statement was either required by statute, or, alternatively, the failure of the statute to include such a requirement has deprived her of due *655 process of law. Second, she argues that AS 20.15.070(b) required the superior court to grant a hearing on whether she could withdraw her consent.
The natural mother's first point is based on a reference to the statutory provision governing relinquishment of parental rights which states that a relinquishment is invalid unless it includes a statement of the ten-day right of withdrawal.[5] The requirement of that provision, however, is not applicable to a consent to adoption. We agree that it might be beneficial to include such a requirement in AS 20.15.070, but that action is appropriate for consideration by the legislature rather than this court. As the Oregon Supreme Court stated in response to a challenge to its consent revocation statute, which bars the natural parents from revoking consent upon entry of a decree at the expiration of six months:
Since the legislature has enacted statutes prescribing how adoptions shall be accomplished, this court has no power to change in any particular the law as expressed in those statutes... . The role of this court is limited to construing the adoption statutes and attempting to ascertain the meaning of the legislature as expressed therein.
Strobel v. Garrison, 255 Or. 16, 464 P.2d 688, 689-90 (1970).
The natural mother argues in the alternative that if notice of the statutory right to withdraw one's consent to adoption within ten days after it is given is not required by AS 20.15.070(b), then that statute has violated her right to due process of law. No persuasive authority is submitted to support this argument. We have recognized, in several different contexts, that a valid consent may be given without the person whose consent is requested first being advised of his or her statutory or constitutional right to refuse. A driver's right to refuse consent to a breathalyzer test is one example. In Wirz v. State, 577 P.2d 227 (Alaska 1978), we held that in the absence of a specific statutory requirement that arrestees be advised of their right to refuse the test, "it would be inappropriate for this court to engraft such a requirement onto [the statute]." 577 P.2d at 230. Similarly, the constitutional right to withhold consent to a police search need not be expressly communicated. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Frink v. State, 597 P.2d 154 (Alaska 1979); Henry v. State, 621 P.2d 1 (Alaska 1980). We find these authorities persuasive and decline to hold AS 20.15.070 (b) to be unconstitutional as it stands.
The natural mother's second point, however, is well taken. AS 20.15.070(b) provides, in addition to the absolute right of withdrawal within ten days, that one may withdraw one's consent to adoption at any time before the entry of the adoption decree if the court finds, after notice and an opportunity to be heard is afforded to all parties involved, that the withdrawal is in the best interest of the person to be adopted. No statement of reasons for the desired withdrawal is called for. The statute clearly calls for a hearing on the best interest of the child if written notice of withdrawal is filed at any time prior to entry of the decree of adoption. Since such a notice was filed, the court's failure to afford the natural mother a hearing was error.
*656 In summary, we hold that the natural mother is entitled to a hearing to determine whether withdrawal of her consent is in the best interest of the child.[6] We remand for such a hearing and set aside the decree of adoption pending its outcome. Since the consent is valid unless and until the court orders its withdrawal pursuant to AS 20.15.070(b), the adoptive parents shall maintain interim custody. Should the court find withdrawal not in the best interest of the child, the decree may be reinstated nunc pro tunc.
VACATED and REMANDED.
BOOCHEVER, J., not participating.
RABINOWITZ, Chief Justice, concurring in part, dissenting in part, joined by BURKE, Justice.
I am in agreement with the court's construction of AS 20.15.070(b) and its holding that here the natural mother must be afforded a hearing concerning her withdrawal of consent to the adoption of her minor child. However, in my view, the decree of adoption in the case at bar must be permanently vacated, since the natural mother's consent to adoption is invalid.
In Delgado v. Fawcett, 515 P.2d 710 (Alaska 1973), we stated:
The correlative rights and duties inherent in the parent-child relationship are natural rights of such fundamental importance that it is generally held that parents should not be deprived of them `except for grave and weighty reasons.' In an adoption proceeding, where an absolute severance of this relationship is sought, the consent provisions are designed to protect the natural rights of a parent to the custody, society, comfort, and services of the child.[1]
In recognition of the substantial rights of a natural parent which are implicated in adoption proceedings, the legislature in part has provided that:
A consent to adoption may be withdrawn before the entry of a decree of adoption, within 10 days, by delivering written notice to the person obtaining the consent.[2]
Given the "essential" nature of a parent's right to conceive and raise his or her children,[3] I am of the view that unless the natural parent receives actual notice of the protection afforded by AS 20.15.070(b) his or her consent to adoption is invalid.
In past decisions, this court has stressed the importance of adequate notification of a party's rights in cases involving economic relations. Aguchak v. Montgomery Ward Co., Inc., 520 P.2d 1352 (Alaska 1974). In Aguchak, a summons to appear in a small claims proceeding did not mention the receiving party's right to file a written pleading rather than make a personal appearance. We held the summons to be defective and a denial of due process because it did not adequately inform the receiving party of his option of filing a written pleading and therefore failed to convey the constitutionally required information sufficient to afford the party an opportunity to be heard. Id. at 1356. Surely notification of a natural mother's rights, when that parent is involved in adoption proceedings which could sever, for all time, her rights and interests as a natural parent, is equally, if not more, significant. As the Supreme Court said in Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972):
It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children `come[s] to this Court with a momentum for respect lacking when appeal is made *657 to liberties which derive merely from shifting economic arrangements.'[4]
The consent to adoption form which the natural mother signed in this case did not contain an advisement that she had the right to withdraw her consent within ten days. This omission was particularly important here because placement of the child with the adoptive parents and execution of the consent occurred simultaneously.[5] I consider it of further significance that the consent to adoption was executed by the natural parent, without the advice of independent counsel, in the office of the adoptive parent's attorney and acknowledged by that attorney.[6] For these reasons, I conclude that the natural mother, in the factual context of this case, was denied due process of law under Article I, section 7 of the Alaska Constitution and thus that her consent was invalid.[7]
One further observation is appropriate. I agree with the majority that, to avoid future injustice, it would be helpful to include a statutory provision in AS 20.15.070 similar to the provisions governing relinquishment of parental rights,[8] which would provide that a consent to adoption is invalid unless it includes a statement that the parent has a ten-day right of withdrawal.
NOTES
[1]  AS 20.15.100 provides in part:

(d) Except as provided in (g) and (i) of this section, an investigation shall be made by the department or any other qualified agency or person designated by the court to inquire into the conditions and antecedents of a minor sought to be adopted and of the petitioner for the purpose of ascertaining whether the adoptive home is a suitable home for the minor and whether the proposed adoption is in the best interest of the minor.
(e) A written report of the investigation shall be filed with the court by the investigator before the petition is heard so long as the report is filed within 30 days of the designation by the court of the department, agency or person to make the investigation.
(f) The report of the investigation shall contain an evaluation of the placement with a recommendation as to the granting of the petition for adoption and any other information the court requires regarding the petitioner or the minor.
[2]  The court was also notified of the withdrawal by counsel on May 30, 1975.
[3]  AS 20.15.100(g) provides:

(g) Unless directed by the court, an investigation and report is not required in cases in which an agency is a party or joins in the petition for adoption, a step-parent is the petitioner, the person to be adopted is within the fourth degree of lineal or collateral consanguinity to the petitioner, or the person to be adopted is an adult. In other cases, the court may waive the investigation only if it appears that the waiver is in the best interest of the minor and that the adoptive home and the minor are suited to each other. The department which is required to consent to the adoption may give consent without making the investigation.
[4]  Part of the delay was occasioned by the adoptive parents' challenge to the natural mother's eligibility for representation by Alaska Legal Services Corporation. "[T]he determination of `eligibility' is an administrative decision within the scope of decision of the corporation and its recipients." Martens v. Hall, 444 F. Supp. 34, 35 (S.D.Fla. 1977). See generally, Dimmick v. Watts, 490 P.2d 483 (Alaska 1971). Although Alaska Legal Services does not have unlimited discretion in determining whether to accept clients, we can see no interests other than vexatious ones that were promoted by counsel for the adoptive parents in challenging such a determination. See Public Defender Agency v. Superior Court, 534 P.2d 947, 952 n. 7 (Alaska 1975).
[5]  AS 20.15.180(b)(1) provides:

b) All rights of a parent with reference to a child, including the right to receive notice of a hearing on a petition for adoption, may be relinquished and the relationship of parent and child terminated by a writing, signed by the parent, regardless of the age of the parent, a copy of which shall be given to the parent,
1) in the presence of a representative of an agency taking custody of the child, whether the agency is within or outside of the state or in the presence and with the approval of a court within or outside of this state in which the minor was present or in which the parent resided at the time it was signed, which relinquishment may be withdrawn within 10 days after it is signed or the child is born, whichever is later; and the relinquishment is invalid unless it states that the parent has this right of withdrawal;
[6]  As one factor in this determination the court should consider the circumstances as they were in May of 1978 when withdrawal of this consent was attempted. Of course, present circumstances must also be weighed.
[1]  515 P.2d at 712, quoting In re Parks' Petition, 267 Minn. 468, 127 N.W.2d 548, 553 (Minn. 1964) (footnotes omitted).
[2]  AS 20.15.070(b).
[3]  Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551, 558-59 (1972).
[4]  405 U.S. at 651, 92 S.Ct. at 1212, 31 L.Ed.2d at 558, quoting Kovacs v. Cooper, 336 U.S. 77, 95, 69 S.Ct. 448, 458, 93 L.Ed. 513, 527 (1949) (Frankfurter, J., concurring).
[5]  Where placement and consent occur at the same time, the 10-day withdrawal provision of AS 20.15.070(b) provides an opportunity for reflection upon the consent decision beyond the potentially emotional moment of placement.
[6]  There is nothing in the record to indicate that the natural parent had notice of her withdrawal right in time for her to exercise it within the 10-day period.
[7]  Although the consent to adoption form that the natural mother signed contained a "waiver of notice" provision, this waiver was invalid because it contained no description of what actual rights and provisions were being waived. See Fuentes v. Shevin, 407 U.S. 67, 94-96, 92 S.Ct. 1983, 2001-02, 32 L.Ed.2d 556, 578-79 (1972).

Unlike the authorities referred to in the court's opinion, we are dealing here with an explicit legislative grant of a right to withdraw a consent to adoption. Given the fundamental importance of the parent-child relationship and the right of withdrawal, granted by AS 20.15.070(b), I find the authorities cited by the majority unpersuasive.
[8]  See AS 20.15.180(b)(1). Compare Indian Child Welfare Act §§ 103(a), (c), 25 U.S.C.A. §§ 1913(a), (c) (West Supp. 1980).


           Case: 17-10016   Date Filed: 09/08/2017   Page: 1 of 4

                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-10016
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket Nos. 0:16-cv-61388-BB,
                         0:15-cr-60005-BB-1

ASAZUH MOBLEY,

                                                          Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                            (September 8, 2017)

Before MARCUS, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:
               Case: 17-10016     Date Filed: 09/08/2017    Page: 2 of 4

      Asazuh Mobley appeals from the district court’s denial of his 28 U.S.C.

§ 2255 motion to vacate his sentence. The district court granted a certificate of

appealability as to:

      Whether the district court erred by denying Mr. Mobley’s motion to
      vacate, set aside, or correct his sentence, brought pursuant to 28
      U.S.C. § 2255, alleging that he was actually innocent of violating 18
      U.S.C. § 924(c) after Johnson v. United States, 135 S. Ct. 2551
      (2015), where the underlying offense, Conspiracy to commit Hobbs
      Act robbery, is not a crime of violence as required by § 924(c).

      In a proceeding on a motion to vacate, set aside, or correct sentence, the

district court’s factual findings are reviewed for clear error while legal issues are

reviewed de novo. Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004). A

prisoner in federal custody may file a motion to vacate, set aside, or correct

sentence pursuant to 28 U.S.C. § 2255, “claiming the right to be released upon the

ground that the sentence was imposed in violation of the Constitution or laws of

the United States.” 28 U.S.C. § 2255(a).

      The Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), which

imposes heightened prison sentences for certain defendants with three prior

convictions for either violent felonies or serious drug offenses, defines the term

“violent felony” as any crime punishable by a term of imprisonment exceeding one

year that:

      (i)    has as an element the use, attempted use, or threatened use of
             physical force against the person of another; or

                                           2
              Case: 17-10016     Date Filed: 09/08/2017   Page: 3 of 4

      (ii)   is burglary, arson, or extortion, involves use of explosives, or
             otherwise involves conduct that presents a serious potential risk
             of physical injury to another.

18 U.S.C. § 924(e)(2)(B). The first prong of this definition is sometimes referred

to as the “elements clause,” while the second prong contains the “enumerated

crimes” and, finally, what is commonly called the “residual clause.” United States

v. Owens, 672 F.3d 966, 968 (11th Cir. 2012).

      On June 26, 2015, the Supreme Court in Johnson held that the residual

clause of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague

because it created uncertainty about how to evaluate the risks posed by a crime and

how much risk it takes to qualify as a violent felony. Johnson, 135 S. Ct. at 2557-

58, 2563. Johnson did not affect any of the ACCA’s other provisions. Id. at 2563.

On April 18, 2016, the Supreme Court held that Johnson announced a new

substantive rule that applies retroactively to cases on collateral review. Welch v.

United States, 136 S. Ct. 1257 (2016).

      Distinct from the provision in § 924(e), § 924(c) provides for a mandatory

consecutive sentence for any defendant who uses a firearm during a crime of

violence or a drug-trafficking crime. 18 U.S.C. § 924(c)(1). For the purposes of

§ 924(c), “crime of violence” means an offense that is a felony and:

      (A)    has as an element the use, attempted use, or threatened use of
             physical force against the person or property of another, or

                                          3
                 Case: 17-10016        Date Filed: 09/08/2017        Page: 4 of 4

       (B)     that by its nature, involves a substantial risk that physical force
               against the person or property of another may be used in the
               course of committing the offense.

Id. § 924(c)(3)(A), (B).

       We recently addressed Johnson’s effect on § 924(c)(3)(B), which we stated

is better understood as a “risk-of-force” clause than a residual clause. Ovalles v.

United States, 861 F.3d 1257, 1263 (11th Cir. 2017). We determined that

Johnson’s void-for-vagueness ruling does not extend to § 924(c)(3)(B), because

the risk-of-force clause in § 924(c)(3)(B) has a distinct purpose of punishing

firearm use in connection with a specific crime rather than recidivism, has not

caused the same difficulty in interpretation, does not encompass risks arising after

the offense is completed, and lacks the confusing comparison to enumerated

offenses. Id. at 1265-67.

       Here, Mobley’s claim is foreclosed by Ovalles, which concluded that

Johnson does not apply to § 924(c)(3)(B). 1

       AFFIRMED.

1
        To the extent that Mobley argues that Conspiracy to commit Hobbs Act Robbery does not
fall under the definition set forth in § 924(c)(3)(B), we review that argument for plain error
because it was not raised below. This requires a defendant to show (1) an error, (2) that is plain,
and (3) that affected his substantial rights. United States v. Turner, 474 F.3d 1265, 1275–76
(11th Cir. 2007). If the defendant satisfies the three conditions, we may exercise our discretion to
recognize the error if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id. at 1276. An error is plain if controlling precedent from the Supreme Court or
our Court establishes that an error has occurred. United States v. Lejarde–Rada, 319 F.3d 1288,
1291 (11th Cir. 2003). Mobley has not pointed to any precedent from either court that holds that
conspiracy to commit Hobbs Act robbery does not fall under the definition set forth in §
924(c)(3)(B) and thus we reject his argument.
                                                 4


STATE OF LOUISIANA
v.
SEAN VINCENT GILLIS
No. 2007 KA 2320
Court of Appeals of Louisiana, First Circuit.
October 31, 2008
RICHARD J. WARD, Jr., District Attorney, ELIZABETH A. ENGOLIO, Assistant District Attorney, Attorneys for State of Louisiana.
JELPI P. PICOU, Jr., Sean Vincent Gillis and MAURICE TYLER, KERRY P. CUCCIA, Attorneys for Defendant-Appellant.
Before: PARROT McCLENDON, and WELCH, JJ.
PARRO, J.
The defendant, Sean Vincent Gillis, was charged by grand jury indictment with second degree murder, a violation of LSA-R.S. 14:30.1. The defendant originally pled not guilty; however, he subsequently changed his plea to guilty as charged, reserving his right under State v. Crosby, 338 Sa.2d 584 (La. 1976), to appeal the denial of his motion to suppress. After a Boykin examination, the trial court accepted the defendant's plea. He subsequently was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. He has appealed, urging five assignments of error. We affirm the conviction and sentence.

FACTS
Because the defendant pled guilty, the facts were not fully developed. At the Boykin hearing, the defendant admitted that he killed Joyce Williams by strangulation in West Baton Rouge Parish. According to the indictment, the defendant killed Williams on or about November 12, 1999.

ASSIGNMENTS OF ERROR NUMBERS ONE, TWO, THREE, & FOUR
The defendant sets forth five assignments of error, all related to the denial of his motion to suppress his statements to law enforcement officials. In his first assignment of error, the defendant contends that the statements extracted from him, following his multiple clear assertions of his right to counsel, should have been suppressed. In his second assignment of error, the defendant contends that after he invoked his right to counsel, the police were prohibited from interrogating him and attempting to extract additional inculpatory statements from him. In his third assignment of error, the defendant claims that because he did not reinitiate his interrogation, the police officers violated his constitutional rights by continuing to interrogate him. In his fourth assignment of error, the defendant contends that because he did not knowingly and intelligently waive his right to counsel, his inculpatory statements should be suppressed.
It is noted that the defendant raised these same issues in a pretrial writ application filed with this court. In that writ application, the defendant sought review of the denial of his motion to suppress, arguing that he invoked his right to counsel on two occasions and the law enforcement officers ignored him. He claimed that when he initially requested counsel, the officers continued to talk to him. The defendant set forth that when he repeated his request for counsel, the officers continued his interrogation without cessation and he did not reinitiate the conversation with the officers. The defendant argued that his invocation of his right to counsel was not ambiguous. The defendant contended that the officers did not ask him to waive his right to have counsel present and he did not waive his right to counsel. In an unpublished decision, this court denied the writ application. State v. Gillis, 07-0511 (La. App. 1st Cir. 4/2/07).
Although a pretrial determination does not absolutely preclude a different decision on appeal, judicial efficiency demands that this court accord great deference to its pretrial decisions unless it is apparent, in light of a subsequent trial record, that the determination was patently erroneous and produced an unjust result. See State v. Humphrey, 412 So.2d 507, 523 (La. 1982) (on rehearing).
In the instant case, the defendant failed to present any new evidence or argument tending to show that this court's pretrial decision regarding the trial court's denial of the motion to suppress was patently erroneous and/or produced an unjust result. In the absence of such a showing, this court will not overturn its earlier decision. It is noted that in his argument for assignment of error number three, the defendant cites State v. Bell, 07-1124 (La. 6/29/07), 958 So.2d 1173 (per curiam), which was decided after this court's decision in the defendant's writ application. In Bell, the Louisiana Supreme Court concluded that Bell's statement regarding counsel was not inconclusive and that the police erroneously reinitiated the conversation with Bell immediately thereafter. The supreme court concluded that any statements made by Bell during the police-initiated questioning after he clearly and unequivocally stated that he preferred to wait for his mother to secure counsel for him were not admissible. The supreme court did allow Bell's statements before he made his request for counsel. Although the Bell case was handed down after this court's denial of the defendant's writ application, the law upon which the conclusion in Bell was based was not new and it did not present anything new for this court to reconsider. These assignments of error are without merit.

ASSIGNMENT OF ERROR NUMBER FIVE
In his fifth assignment of error, the defendant contends that the state should not be allowed to take inconsistent positions on a matter involving fundamental constitutional rights. In his application with this court, the defendant argues that the prosecutors in West Baton Rouge Parish should not have been able to use his statements because the prosecutors in East Baton Rouge Parish were not using the statements in their prosecution of the defendant. The defendant contends that the statement in question was taken as a result of the investigation of murders in East Baton Rouge Parish. The defendant sets forth that decisions made by the state's representative in the East Baton Rouge Parish case should control other cases involving the defendant on fundamental issues like the validity of an interrogation. The defendant states that this does not mean one district attorney should control the strategy of another, but that the state should not take contradictory positions where an accused faces charges in more than one judicial district.
Louisiana Code of Criminal Procedure article 61 provides that the district attorney has "entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute." There appears to be no case law to support the defendant's argument and the defendant did not set forth any authority for this claim. This assignment of error is without merit.
CONVICTION AND SENTENCE AFFIRMED.


85 F.3d 615
NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Joseph Emanuel CROUCH, Plaintiff-Appellant,v.Norman C. TYLER, Detective;  Arlington County PoliceDepartment;  Arlington County, Virginia,Defendants-Appellees.
No. 95-7938.
United States Court of Appeals, Fourth Circuit.
Submitted April 15, 1996.Decided April 29, 1996.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria.   Claude M. Hilton, District Judge.  (CA-95-1489)
Joseph Emanuel Crouch, Appellant Pro Se.
E.D.Va.
AFFIRMED.
Before ERVIN and MOTZ, Circuit Judges, and CHAPMAN, Senior Circuit Judge.
PER CURIAM:

1
Appellant appeals from the district court's order denying relief on his 42 U.S.C. § 1983 (1988) complaint.   We have reviewed the record and the district court's opinion and find no reversible error.   Accordingly, we affirm on the reasoning of the district court.   Crouch v. Tyler, No. CA-95-1489 (E.D.Va. Oct. 30, 1995).   We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

2
AFFIRMED.


                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-15-00060-CR

Clay Bentley Laborde                    §    From Criminal District Court No. 1

                                        §    of Tarrant County (1380920D)

v.                                      §    May 7, 2015

                                        §    Per Curiam

The State of Texas                      §    (nfp)

                                 JUDGMENT

      This court has considered the record on appeal in this case and holds that

the appeal should be dismissed. It is ordered that the appeal is dismissed.

                                    SECOND DISTRICT COURT OF APPEALS

                                    PER CURIAM


7 A.3d 780 (2010)
416 N.J. Super. 594
Leonard L. FREDERICK, the Estate of Colette A. Frederick, Frances A. Frederick, Matthew F. Streib, Lauren A. Streib, John Sasser, III, Susan Sasser, Richard J. Lisco, Daria H. Lisco, Anthony Meola and Maria Meola, Plaintiffs-Appellants,
v.
Maxwell Baldwin SMITH, Holly Smith, Cantone Research, Inc., PNC Investments, J.J.B. Hilliard, W.L. Lyons, Inc., Atlantic Group Securities, Inc., and Rickel & Associates, Inc., Defendants, and
Merrill Lynch, Pierce, Fenner & Smith, Inc., Defendant-Respondent.
No. A-1620-09T2.
Superior Court of New Jersey, Appellate Division.
Submitted October 27, 2010.
Decided November 9, 2010.
*781 D'Alessandro & Jacovino, attorneys for appellants (Edward G. D'Alessandro, Jr., Florham Park, on the brief).
Bressler, Amery & Ross, attorneys for respondent (David J. Libowsky, Florham Park, on the brief).
Before Judges CUFF, FISHER and SIMONELLI.
The opinion of the court was delivered by FISHER, J.A.D.
Plaintiffs commenced these actions[1] alleging that defendant Maxwell Baldwin Smith (Smith) convinced them to invest in Healthcare Financial Partnership (HFP), a fictitious entity. As part of the fraud, Smith instructed plaintiffs to convey the invested funds to an account he maintained with defendant Merrill Lynch, Pierce, Fenner & Smith (Merrill Lynch). Because plaintiffs had no relationship with Merrill Lynch, and because Smith had no relationship with Merrill Lynch other than as owner of the account into which the funds were placed, we conclude that, as a matter of law, no duty should be imposed on Merrill Lynch to periodically examine the account's activities for indicia of fraud and, therefore, affirm the order dismissing the claim.
In April and June of 2009, these four separate actions were filed against Smith, *782 his wife Holly Smith, and several investment advisor firms, alleging Smith created and orchestrated a scheme to defraud them. After the actions were consolidated, Merrill Lynch moved for dismissal pursuant to Rule 4:6-2(e). Plaintiffs opposed the motion and cross-moved for an order compelling arbitration. Merrill Lynch's motion was granted and plaintiffs' cross-motion was denied on October 23, 2009. When the remaining issues in these actions were later resolved, plaintiffs filed this appeal, seeking our review of the order dismissing the negligence claims asserted against Merrill Lynch and the order denying plaintiffs' motion to compel arbitration.
A complaint should be dismissed for failure to state a claim pursuant to Rule 4:6-2(e) only if "the factual allegations are palpably insufficient to support a claim upon which relief can be granted." Rieder v. State Dep't of Transp., 221 N.J.Super. 547, 552, 535 A.2d 512 (App. Div.1987). This standard requires that "the pleading be searched in depth and with liberality to determine whether a cause of action can be gleaned even from an obscure statement." Seidenberg v. Summit Bank, 348 N.J.Super. 243, 250, 791 A.2d 1068 (App.Div.2002) (citing Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746, 563 A.2d 31 (1989)). The pleader is entitled to "the most favorable inferences which may be reasonably drawn from" the pleading's allegations, Rappaport v. Nichols, 31 N.J. 188, 193, 156 A.2d 1 (1959), and, in reviewing a Rule 4:6-2(e) dismissal, we apply the same standard, Seidenberg, supra, 348 N.J.Super. at 250, 791 A.2d 1068; Donato v. Moldow, 374 N.J.Super. 475, 483, 865 A.2d 711 (App.Div.2005).
As part of their negligence claims, plaintiffs alleged that Smith convinced them to invest in HFP, which he claimed was "a secure tax-free investment which paid a high level of interest through investment in a diversified portfolio of high yielding income projects." According to their complaints, plaintiffs collectively invested approximately $10 million in HFP over a number of years. Smith obtained these funds by instructing plaintiffs to make their checks payable to "Merrill Lynch A/C # 36641" or "directly to Merrill Lynch," misrepresenting to plaintiffs that Merrill Lynch was the security's underwriter. According to plaintiffs, the referenced account was a personal account Smith opened at Merrill Lynch "for the sole purpose of furthering the Ponzi scheme." Once plaintiffs' checks were deposited in Smith's personal Merrill Lynch account, Smith remitted to plaintiffs phony correspondence memorializing the deposit and then used the funds for his own benefit. By the time plaintiffs discovered what was happening, they had lost nearly their entire investments.
The complaints alleged that while Smith was orchestrating his fraud, he was employed by: defendant Hilliard W.L. Lyons, Inc., from 1999-2003; defendant PNC Investments from 2004-2005; and defendant Cantone Research, Inc., from 2005-2009. Plaintiffs do not allege Smith was ever employed by Merrill Lynch. Notwithstanding the lack of any relationship between Merrill Lynch and Smith or the lack of any relationship between plaintiffs and Merrill Lynch, plaintiffs alleged Merrill Lynch was negligent for failing to discover Smith's use of his Merrill Lynch account to perpetrate a fraud.[2] Plaintiffs acknowledged that ordinarily a bank only owes duties to its customers, but claimed that a fiduciary relationship was established in *783 this case because they wrote checks directly to Merrill Lynch when investing in HFP.
Although Judge W. Hunt Dumont mentioned that plaintiffs' claims "[did] have a certain superficial appeal,"[3] he interpreted the applicable law as limiting a brokerage firm's duty to only its customers and dismissed the negligence claims asserted by plaintiffs against Merrill Lynch. In appealing, plaintiffs argue that although a bank or brokerage firm does not typically owe a duty to non-customers, Merrill Lynch owed them a duty in this case because it "accepted more than $9 million of [p]laintiff[s'] money . . . by way of checks payable to Merrill Lynch."
Whether a duty should be imposed is a matter of law, Kernan v. One Washington Park Urban Renewal Associates, 154 N.J. 437, 445, 713 A.2d 411 (1998); Arvanitis v. Hios, 307 N.J.Super. 577, 581, 705 A.2d 355 (App.Div.1998), that poses "`a question of fairness'" involving "'a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution,'" Kelly v. Gwinnell, 96 N.J. 538, 544, 476 A.2d 1219 (1984) (quoting Goldberg v. Hous. Auth. of Newark, 38 N.J. 578, 583, 186 A.2d 291 (1962)). In reviewing a trial judge's determination that a duty does or does not arise in a particular situation, we are bound neither by the trial judge's interpretation of the law nor the judge's view of the legal consequences of the alleged facts. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, 658 A.2d 1230 (1995).
Although our courts have not previously considered whether a brokerage firm owes a duty towards non-customers in this context, our Supreme Court has expressed a "reluctance to impose a duty of care on banks in respect of a total stranger." Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 403, 972 A.2d 1112 (2009); see also City Check Cashing v. Mfrs. Hanover Trust Co., 166 N.J. 49, 60, 764 A.2d 411 (2001).
The Court's decision in City Check Cashing is particularly instructive. There, a check cashing business was presented with a forged check appearing to have been marked certified by the defendant bank. Id. at 52-53, 764 A.2d 411. Before cashing the check, the manager contacted a bank representative who initially expressed concerns about the check's legitimacy and promised to look at it more closely. Id. at 53-54, 764 A.2d 411. Not hearing from the bank representative for several hours, the store manager cashed the check. Id. at 55, 764 A.2d 411. In finding no maintainable negligence claim against the bank, the Court held that "[a]bsent a special relationship, courts will typically bar claims of non-customers against banks." Id. at 60, 764 A.2d 411, That is, the Court held that absent some "agreement, undertaking or contract" between the parties, a bank does not owe a duty to a non-customer, id. at 62, 764 A.2d 411, explaining that "[i]n actions based on nonfeasance," there must be "some definite relation between the parties, of such a character that social policy justifies the imposition of a duty to act," id. at 59, 764 A.2d 411 (quoting W. Page Keeton et al., Prosser & Keeton on Torts § 56 at 374 (5th ed. 1984)). See also Pennsylvania Nat'l Turf Club v. Bank of W. Jersey, 158 *784 N.J.Super. 196, 203, 385 A.2d 932 (App. Div.), certif. denied, 77 N.J. 506, 391 A.2d 520 (1978).
Plaintiffs have not demonstrated why some other rule should apply to a brokerage firm with regard to an individual's personal brokerage account. Indeed, we are impressed by the fact that plaintiffs' theory appears never to have been accepted by any of the federal courts that have considered it; those federal courts, including the federal district court in this State, Riggs v. Schappell, 939 F.Supp. 321, 329-30 (D.N.J.1996), that have explored the issue, have held that a brokerage firm is under no obligation to be a fraud watchdog for non-customers. See In re Agape Litig., 681 F.Supp.2d 352, 361 (E.D.N.Y. 2010); Kolbeck v. LIT Am., 923 F.Supp. 557, 571-72 (S.D.N.Y.1996), aff'd, 152 F.3d 918 (2d Cir.1998); Guidry v. Bank of LaPlace, 740 F.Supp. 1208, 1218-19 (E.D.La.1990), aff'd as modified, 954 F.2d 278 (5th Cir.1992). The common theme in all these cases is that a duty arises only "when the broker does business with the plaintiff." Kolbeck, supra, 923 F.Supp. at 572 (S.D.N.Y.1996). That theme is consistent with the common law approach, expressed in Brunson and City Check Cashing, that precludes claims made by non-customers against banks.
In applying these principles, we conclude that the absence of any relationship between plaintiffs and Merrill Lynch precludes the imposition of a duty on Merrill Lynch to periodically or regularly police the personal account maintained by Smith for indicia of fraud. Furthermore, the fact that plaintiffs may have at times submitted checks directly to Merrill Lynch, as instructed by Smith, did not create a relationship where none previously existed. Merrill Lynch deposited the checks in Smith's account as directed; it issued no statements to plaintiffs and derived no financial benefit from the fact that checks may have been written directly to Merrill Lynch instead of Smith. In the absence of no greater nexus between plaintiffs and Merrill Lynch, or between Smith and Merrill Lynch, plaintiffs possessed no viable negligence claim against Merrill Lynch. Accordingly, the order of dismissal must be affirmed.[4]
We lastly observe that plaintiffs also argue the judge erred in denying their cross-motion to compel arbitration of their claims against Merrill Lynchan argument without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We note only that in light of our disposition of the negligence claim, plaintiffs have no viable cause of action to be arbitrated even if we were to ignore the other insurmountable burden that plaintiffs and Merrill Lynch never entered into an agreement to arbitrate any disputes that might later arise between them.
Affirmed.
NOTES
[1]  The four actions before usLeonard L. Frederick, et al. v. Maxwell B. Smith, III, et al., Docket No. MRS-L-1108-09; John Sasser, III, et al. v. Maxwell Baldwin Smith, et al., Docket No. MON-L-2297-09; Richard J. Lisco, et al. v. Maxwell Baldwin Smith, et al., Docket No. MRS-L-1817-09; and Anthony Meola, et al. v. Maxwell Baldwin Smith, et al., Docket No. OCN-L-2555-09were consolidated and venued in Morris County.
[2]  Plaintiffs also alleged that Merrill Lynch violated the Racketeering Influenced and Corrupt Organizations Act, 18 U.S.C.A. § 1962, but later voluntarily dismissed that claim.
[3]  In describing this "superficial appeal," Judge Dumont rhetorically asked, "How can Merrill Lynch take in 8, 9, I even heard $10 million worth of checks over a 16 year period, made out to Merrill Lynch, and simply deposit them in its account holder's account, without doing anything more, because it, obviously, has some obligation to know its own customer, even though plaintiffs were not customers."
[4]  District Judge Joel Pisano recently reached the same conclusion in dismissing negligence claims asserted against Merrill Lynch by other Smith clients. Tedeschi v. Smith, No. 09-03134 JAP, 2010 WL 148424 at *5-6, 2010 U.S. Dist. LEXIS 2336 at *16-17 (D.N.J. Jan. 12, 2010).