APPELLATE COURT OPINIONS

This case essentially involves a dispute between the owners of adjoining properties in Grainger County. Specifically, the dispute focuses on (1) the ownership of a private road ("the disputed private road"); (2) the easement rights, if any, of the plaintiff Benjamin S. Pressnell with respect to a right-of-way over the property of the defendants Steve Hixon and wife, Betty Hixon; and (3) damages allegedly sustained by Pressnell and another plaintiff by virtue of the Hixons' interference with Pressnell's right to use the disputed private road and the easement. The trial court, following a bench trial, found the issues in favor of the plaintiffs. The defendants appeal. We affirm.

First Tennessee Bank National Association ("the Bank") sued Bad Toys, Inc. and Larry N. Lunan on a note that allegedly was "fully mature, owing and unpaid." The note had been cross collateralized with two other notes payable to the Bank. The three notes and the attendant guaranty agreements and security agreements were executed either by Bad Toys, Inc., Larry N. Lunan, or Susan H. Lunan ("Defendants" or as appropriate "the Lunans"). In addition to other collateral, shares of stock were pledged as collateral for the notes. Bad Toys, Inc. and Larry N. Lunan answered the complaint and filed a counter-complaint in which Susan H. Lunan joined as a counter-plaintiff. The counter-complaint alleged, in part, that the Bank had breached its fiduciary duty to the Lunans by failing to sell the pledged stock and that the Bank either had been grossly negligent or had intentionally caused harm to Defendants by refusing to sell the stock. The Bank filed a motion to dismiss and for summary judgment. Defendants opposed by filing the Lunans' affidavit claiming that the Bank had agreed to sell the shares of stock as soon as they were pledged, even though the Lunans were forbidden by an agreement with other shareholders from selling the stock themselves, and that the Bank failed to sell the shares of stock as it had agreed to do. The Trial Court held the Lunans' affidavit should be stricken, in part, and granted the Bank            summary judgment. Defendants appeal. We affirm.

This case involves a child custody dispute between the parents of two minor children. Following a bench trial, the trial court granted the parties an absolute divorce and designated the mother as the primary residential parent. In addition, the court below awarded the parties equal parenting time and provided for an alternating visitation schedule in the Permanent Parenting Plan. The mother subsequently filed a motion requesting the trial court to reconsider the custody arrangement, which the trial court denied. The mother filed this appeal contesting the determination of custody by the Circuit Court of Shelby County. For the reasons stated below, we affirm the decision of the circuit court.

The defendants, Cornelius D. Hicks and Troy Lee Springfield, and two codefendants, Bryan T. Oldham and Kenyale M. Pirtle, were charged with aggravated assault, a Class C felony, for firing a gun at the victim, Keiston Campbell, as he drove his car down a Henning street. Pirtle subsequently pled guilty to aggravated assault, and a fifth individual involved in the incident had his case handled in juvenile court. The three remaining defendants, Springfield, Hicks, and Oldham, were tried jointly before a Lauderdale County Circuit Court jury, which acquitted Oldham but convicted both Hicks and Springfield of the lesser-included offense of facilitation of aggravated assault, a Class D felony. The trial court sentenced Hicks as a Range I, standard offender to three years in the Department of Correction, with the sentence suspended and the defendant placed on supervised probation following service of 250 days, to be served consecutively to a sentence for an offense for which he was on probation at the time of the instant offense. Springfield was sentenced as a Range I, standard offender to three years in the Department of Correction, with the sentence ordered to be served consecutively to his sentence for violation of parole. The sole issue Hicks raises on appeal is whether the evidence was sufficient to sustain his conviction. Springfield challenges the trial court’s denial of his motions to sever his trial and for judgment of acquittal. Following our review, we affirm the judgments of the trial court.

The appellant, Syreeta Patterson, pled guilty in the Shelby County Criminal Court to voluntary manslaughter. Pursuant to a plea agreement, the appellant was sentenced to six years with the manner of service to be determined by the trial court. Following a hearing, the trial court denied the appellant’s request for alternative sentencing, and the appellant timely appealed. Upon review of the record and the parties’ briefs, we affirm the judgment of the trial court.

The appellant, Larry Hunt, was convicted by a jury in the Shelby County Criminal Court of one count of aggravated rape, one count of aggravated robbery, and one count of aggravated kidnapping. Following a hearing, the trial court sentenced the appellant to twenty-five years incarceration for the aggravated rape conviction, twelve years incarceration for the aggravated robbery conviction, and twelve years incarceration for the aggravated kidnapping conviction. The trial court ordered the sentence for aggravated rape be served consecutively to the remaining sentences, for an effective thirty-seven year sentence. On appeal, the appellant challenges the sufficiency of the evidence to support his conviction of aggravated rape and the imposition of consecutive sentencing. In light of the United States Supreme Court’s decision in Blakely v. Washington, __ U.S. __, 124 S. Ct. 2531 (2004), we modify the appellant’s sentence for aggravated rape to twenty-two years and the sentences for aggravated robbery and aggravated kidnapping to ten years, for an effective sentence of thirty-two years incarceration. We also vacate the judgment of conviction for count two of indictment number 00-12640, which judgment was entered in error. We otherwise affirm the judgments of the trial court.

Darry Miller appeals from his Lauderdale County Circuit Court conviction of delivery of a Schedule II controlled substance less than 0.5 grams. He claims that the evidence presented at trial is insufficient to sustain a conviction. We disagree and affirm.

The Defendant, Darrell Wayne Syler, was convicted after a jury trial of two counts of rape of a child, one count of attempted child rape, one count of aggravated sexual battery and thirteen counts of especially aggravated sexual exploitation of a minor. The Defendant was subsequently sentenced to an effective term of twenty-nine years in the Department of Correction. In this appeal, the Defendant contends that the trial court erred in admitting a homemade videotape depicting the Defendant and his wife engaged in sex acts, and that his convictions for especially aggravated sexual exploitation must be reversed because the State failed to establish one of the statutory elements of that offense. We reduce the Defendant's sentence to an effective term of twenty-eight years, and otherwise affirm the judgments of the trial court.

The appellant, Robert Love Taylor, was convicted by a jury of driving while declared a habitual motor vehicle offender. He was sentenced to four years incarceration and fined $3,000 for the offense. Two motions for new trial were filed

The appellant, Gregory Morrow, was found guilty by a jury in the Shelby County Criminal Court of possessing 300 grams or more of cocaine with the intent to sell, possessing 300 grams or more of cocaine with the intent to deliver, and two counts of possessing marijuana. The appellant received a total effective sentence of fifteen years incarceration in the Tennessee Department of Correction. On appeal, the appellant challenges the trial court’s ruling on his motion to suppress and raises complaints regarding the application of Rule 41(g) of the Tennessee Rules of Criminal Procedure. Upon our review of the record and the parties’ briefs, we affirm the judgments of the trial court, but we remand for a merger of the appellant’s two cocaine convictions and his two marijuana convictions.

The appellant, Alfonso Martinez, was found guilty by a jury in the Henderson County Circuit Court of felony possession of drug paraphernalia and was sentenced to two years incarceration in the Tennessee Department of Correction. On appeal, the appellant’s sole issue is the constitutionality of Tennessee Code Annotated sections 39-17-424 and 39-17-425 (2003). Upon review of the record and the parties’ briefs, we conclude that the appellant has waived his issue. Therefore, we affirm the judgment of the trial court.

Plaintiff sustained injuries from a fall in the court house and sued the County for maintaining a dangerous stairway. Following trial, the Court entered a Judgment for defendant. We affirm.

The appellant, Memphis Bonding Company, appeals the trial court's order requiring a partial refund to the defendant, Willie James Bassett. Because the governing statute does not permit a refund under the circumstances of this case, the judgment of the trial court is reversed.

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

The petitioner, James Bell, Jr., entered pleas of guilty to a number of offenses in the Shelby County Criminal Court in 1997 and 2000, and subsequently filed a petition for writ of habeas corpus in the Lake County Circuit Court, asserting that his convictions were void and his sentences illegal. The court denied the petition without a hearing, and this appeal followed. We affirm the denial of the petition, but remand to the Shelby County Criminal Court for a hearing to identify what disposition was intended as to each of the indictments and entry of corrected judgments to reflect those determinations

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.

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

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.

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.

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.

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.

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.

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