APPELLATE COURT OPINIONS

The defendant, Neal Levone Armour, appeals the Hamilton County Criminal Court's revocation of probation. Because the record supports the trial court's actions, we affirm.

This appeal arises from a divorce action. The trial court awarded primary residential custody to mother and standard visitation to father. We affirm.

The Knox County Criminal Court denied the motion of the defendant, Eric Eugene Gilmore, to set aside his 2001 guilty pleas to a number of charges. We affirm.

This case arises out of an automobile accident. Appellant appeals from a Judgment entered on a jury verdict. The jury found the two Defendants to each be 50% at fault and Plaintiff to be 0% at fault. The jury awarded $0 damages to the Plaintiff. We find that the trial court did not err in its duty as thirteenth juror and that there is material evidence to support the verdict. We affirm.
 

In 1987 six (6) siblings acquired by intestate succession, a 115-acre tract, mostly flood plain unimproved land bordering North Chickamauga Creek near Hixson, Tennessee. Five (5) of the owners filed a partition action against their brother whose residence adjoined an upland portion of the 115 acres that was not subject to flooding. A consent judgment was entered in 1998 that the entire acreage would be sold and the net proceeds divided equally among the six (6) owners. But the consent judgment also provided that if no offer to purchase for $1,734,150.00 was received, the property would not be sold without unanimous consent or upon further order of the court. Four years later the North Chickamauga Creek Conservancy offered $800,000.00 which was accepted by the plaintiffs, and disdained by the defendant, who apparently wanted the upland tract of 19 acres adjoining his residence as his partitioned share. The court ordered the property sold for partition. We modify as to the real estate commission and affirm.

The trial court denied Mother's petition to change custody of the parties' minor children from Father to Mother. We affirm.

JANICE M. HOLDER, J., concurring.
I agree with the majority that the complaint alleges sufficient facts to withstand a motion to
dismiss. I write separately, however, because I believe the majority’s analysis unnecessarily creates
confusion by using foreseeability in analyzing both duty and proximate causation.

Defendant, Tony Ivens, appeals the trial court's denial of his motion for new trial. Following a jury trial, Defendant was convicted of sexual battery. Defendant was fined $3,000 and sentenced to serve two years with all but 90 days to be suspended and served on probation. Defendant filed a motion for new trial or mistrial, alleging that one of the jurors failed to disclose during voir dire that she was related to a staff member of the Monroe County Sheriff's Department. The trial court denied the motion, and Defendant appeals. After a careful review of the record, we affirm the judgment of the trial court.

The Defendant, Derrick Bryant, was convicted by a jury of first degree premeditated murder. His conviction was affirmed on direct appeal. See State v. Derrick Bryant, No. E2000-01835-CCA-MR3-CD, 2001 WL 1187916 (Tenn. Crim. App., Knoxville, Oct. 9, 2001). In this post-conviction proceeding, the Defendant alleges that he received ineffective assistance of counsel. After a hearing, the trial court denied relief. We affirm the judgment of the trial court.

The petitioner, Roger K. Jones, appeals the order dismissing his petition for writ of habeas corpus. The state has filed a motion requesting that this court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petition fails to establish either a void judgment or an expired sentence. Accordingly, the state's motion is granted and the judgment of the trial court is affirmed.

Following a bench trial, the Defendant, Sherry Lynn Johnson, was convicted of assault, a Class A misdemeanor. The trial court placed the Defendant on judicial diversion. In this appeal, the Defendant asserts that the trial court misinterpreted the assault statute and that the evidence is insufficient to support her conviction. Because the Defendant was placed on judicial diversion, no judgment of conviction has been entered, and the Defendant has no appeal as of right under Tennessee Rule of Appellate Procedure 3. Accordingly, the appeal is dismissed.

In this capital case, the defendant, Robert L. Leach, Jr., was convicted of two counts of first degree premeditated murder, two counts of first degree felony murder, one count of especially aggravated robbery, and one count of aggravated rape. The trial court merged the felony murder convictions with the premeditated murder convictions. The jury imposed sentences of death for the two murder convictions. The trial court imposed two consecutive sentences of twenty-five years for the especially aggravated robbery and aggravated rape convictions, which were ordered to run consecutively to the two death sentences. The Court of Criminal Appeals affirmed Leach’s convictions and sentences. On automatic appeal under Tennessee Code Annotated section 39-13- 206(a)(1), we designated the following issues for oral argument:1 1) whether the evidence is insufficient to support convictions for premeditated murder and felony murder; 2) whether the trial court erred in prohibiting Leach from presenting a witness to discredit the testimony of Joseph Walker; 3) whether the trial court committed reversible error in instructing the jury to consider evidence of Leach’s attack on Dorianne Brown to “complete the story”; 4) whether the death penalty is precluded in this case under Apprendi v. New Jersey, 530 U.S. 466 (2000), because aggravating circumstances were not set out in the indictment; and 5) whether the sentences of death are disproportionate or invalid under the mandatory review of Tennessee Code Annotated section 39-13- 206(c)(1). Having carefully reviewed these issues and the remainder of the issues raised by Leach, we conclude that they do not warrant relief. Accordingly, we affirm the judgment of the Court of Criminal Appeals. Tenn. Code Ann. § 39-13-206(a)(1); Judgment of the Court of Criminal Appeals Affirmed.

Appellant purchaser of commercial building sued appellee seller to recover payment of a tenant improvement allowance made by the appellee to a tenant pursuant to a lease agreement assigned to the purchaser as part of the transaction. The trial court granted appellee seller summary judgment based upon a construction of the terms of the assignment transferring the lease to the purchaser. Appellant purchaser appeals. We affirm.
 

I concur in the conclusion of the majority that Leach’s convictions should be affirmed. As to the sentences of death, however, I continue to adhere to my views that the comparative proportionality review protocol currently embraced by the majority is inadequate to shield defendants from the arbitrary and disproportionate imposition of the death penalty. See Tenn. Code Ann. § 39- 13-206(c)(1)(D) (1995 Supp.). I have repeatedly expressed my displeasure with the current protocol since the time of its adoption in State v. Bland, 958 S.W.2d 651 (Tenn. 1997). See State v. Holton, 126 S.W.3d 845, 872 (Tenn. 2004) (Birch, J., concurring and dissenting); State v. Davidson, 121 S.W.3d 600, 629-36 (Tenn. 2003) (Birch, J., dissenting); State v. Carter, 114 S.W.3d 895, 910-11 (Tenn. 2003) (Birch, J., dissenting); State v. Reid, 91 S.W.3d 247, 288-89 (Tenn. 2002) (Birch, J., concurring and dissenting); State v. Austin, 87 S.W.3d 447, 467-68 (Tenn. 2002) (Birch, J., dissenting); State v. Stevens, 78 S.W.3d 817, 852 (Tenn. 2002) (Birch, J., concurring and dissenting); State v. McKinney, 74 S.W.3d 291, 320-22 (Tenn. 2002) (Birch, J., concurring and dissenting); State v. Bane, 57 S.W.3d 411, 431-32 (Tenn. 2001) (Birch, J., concurring and dissenting); State v. Stout, 46 S.W.3d 689, 720 (Tenn. 2001) (Birch, J., concurring and dissenting); Terry v. State, 46 S.W.3d 147, 167 (Tenn. 2001) (Birch, J., dissenting); State v. Sims, 45 S.W.3d 1, 23-24 (Tenn. 2001) (Birch, J., concurring and dissenting); State v. Keen, 31 S.W.3d 196, 233-34
(Tenn. 2000) (Birch, J., dissenting); State v. Chalmers, 28 S.W.3d 913, 920-25 (Tenn. 2000) (Birch, J., concurring and dissenting); State v. Bland, 958 S.W.2d at 679 (Birch, J., concurring and dissenting). As previously discussed, I believe that the three basic problems with the current proportionality analysis are that: (1) the proportionality test is overbroad,1 (2) the pool of cases used In my view, excluding from comparison that group of cases in which the 2 State did not seek the death penalty, or in which no capital sentencing hearing was held, frustrates any meaningful comparison for proportionality purposes. See Bland, 958 S.W.2d at 679 (Birch, J., dissenting). 3As I stated in my concurring/dissenting opinion in State v. Godsey, “[t]he scope of the analysis employed by the majority appears to be rather amorphous and undefined expanding, contracting, and shifting as the analysis moves from case to case.” 60 S.W.3d 759, 797 (Tenn. 2001)(Birch, J., concurring and dissenting). -2- for comparison is inadequate,2 and (3) review is too subjective.3 In my view, these flaws undermine the reliability of the current proportionality protocol. See State v. Godsey, 60 S.W.3d at 793-800 (Birch, J., concurring and dissenting). Accordingly, I respectfully dissent from that portion of the majority opinion affirming the imposition of the death penalty in this case.

The Defendant appeals from an order of the trial court which found him to be in violation of the terms of his community corrections sentence. The trial court ordered that the remainder of the Defendant's sentence be served in confinement. On appeal, the Defendant argues that the trial court abused its discretion in ordering that the Defendant serve his sentence in confinement rather than allowing him to continue in the community corrections program. We affirm the judgment of the trial court.

We granted review to determine (1) whether the complaint states a claim for intentional infliction of emotional distress when it alleges that the defendant’s conduct was outrageous because he shot his wife and then himself in plaintiff Cindy Lourcey’s presence; and (2) whether the complaint states a claim for negligent infliction of emotional distress when it does not allege that Cindy Lourcey was related to the defendant or his wife. The trial court dismissed the complaint for failure to state a claim upon which relief may be granted pursuant to Tennessee Rule of Civil Procedure 12.02(6). The Court of Appeals reversed the trial court’s judgment after concluding that the complaint states claims for intentional and negligent infliction of emotional distress. After reviewing the record and applicable authority, we hold that the plaintiffs state a claim for intentional infliction of emotional distress because Cindy Lourcey witnessed an “outrageous” act, i.e., the defendant’s shooting of his wife and himself, and that the plaintiffs state a claim for negligent infliction of emotional distress even though Cindy Lourcey is not related to the defendant or his wife. Accordingly, we affirm the Court of Appeals’ judgment. Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Affirmed; Case Remanded to Circuit Court
 

The Appellant, Joseph Carl Ganus, appeals the sentencing decision of the Hardin County Circuit Court. Ganus pled guilty to Violation of the Motor Vehicle Habitual Offender (MVHO) statute and DUI, third offense. Following a sentencing hearing, Ganus was sentenced to four years confinement in the Department of Correction for violation of the MVHO statute and to eleven months and twenty-nine days for DUI, third offense.1 These sentences were ordered to be served concurrently. On appeal, Ganus argues that the trial court erred: (1) by not granting him a non-incarcerative sentence and (2) by improperly weighing enhancing factors in establishing the length of his sentence. After review of the record, we find no error and affirm the judgment of the trial court.

This is an appeal from the trial court’s grant of Defendants/Appellees’ motion for summary judgment. Under T.C.A. §40-38-108, the trial court found that Defendants/Appellees were immune from prosecution for their alleged failure to properly inform Plaintiff/Appellant of his possible right to recover from the Tennessee Criminal Injury Compensation Fund. We affirm.
 

The petitioner, Richard Hickey, appeals the Morgan County Criminal Court's dismissal of his petition for habeas corpus relief. We affirm.

A suit for property damages resulting from a motor vehicle accident resulted in an award for damages based on a finding by the Trial Court that defendant was 75% at fault for the accident. On appeal, we affirm.

This is an action to collect on a homeowner’s insurance policy. The roof and attic of the plaintiff’s home sustained about $9,800 in damages. The plaintiff filed a claim on the homeowner’s insurance policy he had purchased from the defendant insurance company. The claim was denied. The plaintiff filed the instant lawsuit to recover the insurance proceeds. After the plaintiff presented his proof, the trial court entered a judgment in favor of the insurance company. The plaintiff now appeals. Based on the sparse record on appeal, we affirm.
 

This is a Title IV child support case. The mother established paternity against the father in juvenile court, and the father was ordered to pay child support. Prior to establishing the father’s paternity, the mother had intermittently received public assistance. Consequently, the father was to send the child support payments to the State’s collection and disbursement unit, pursuant to Title IV, chapter D of the Social Security Act. The father failed to pay the required child support. The State then intervened by filing a petition for contempt against the father. In the contempt hearing, the mother asked that the father’s child support obligation be terminated. The trial court suspended the father’s obligation to pay current child support in a set amount through the State disbursement unit, with the understanding that the father would pay child support in an undetermined amount directly to the mother, pursuant to an unwritten private agreement between the mother and the father. The father was required to make payments to the State on his past arrearages. The State appealed. We reverse and remand, holding that the trial court was required to have the child support payments, in a set amount that comports with the child support guidelines, sent to the State collection and disbursement unit, and remand for modification of the amount paid on the father’s arrearages.
 

This is a contract case. On December 21, 2001, the parties entered into a contract granting the plaintiff an option to purchase real property. The plaintiff was required to exercise his option by 5:00 p.m., January 21, 2002, either by delivering written notice by that date to the defendant corporation, or by mailing written notification, postmarked no later than January 21, 2002. At the time the contract was executed, the parties were unaware that January 21 was a national holiday recognizing Martin Luther King, Jr. On January 21, 2002, the plaintiff attempted to hand-deliver written notification of his intent to exercise the option, found no one at the defendant’s office at the time and mistakenly assumed the office was closed because of the holiday. On January 22, the plaintiff hand-delivered written notice to the defendant. The defendant maintained that the option had expired. The plaintiff filed this lawsuit, seeking a declaratory judgment that the January 22 notice was timely and that the defendant was obligated to sell him the property pursuant to the option contract. After a trial, the trial court held in favor of the defendant, finding that the option had expired. The plaintiff appeals, arguing impossibility of performance and mutual mistake. We affirm, finding that the trial court did not err in concluding that the doctrines of impossibility of performance and mutuality of mistake are not applicable.
 

The present workers’ compensation case requires us to consider the trial court’s assessment of vocational disability and, with respect to the employer’s alleged subrogation interest, 1) the applicability of Tennessee Code Annotated section 50-6-112(c)(1); 2) the extent of the employer’s credit against future liability under Tennessee Code Annotated section 50-6-112(c)(2); 3) the appropriate disposition of medical expenses incurred prior to the time of trial in the employee’s workers’ compensation suit but not paid by the employer; and 4) the propriety of requiring the employer to pay a proportionate share of the employee’s attorney’s fee from a third-party tort action. The trial court’s judgment is affirmed in part and reversed in part, and the case is remanded. Tenn. Code Ann. 50-6-225(e)(3); Judgment of the Trial Court Affirmed in Part and Reversed in Part, Case Remanded