IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

October 9, 2019 Session

DONNA JETTER v. PIEDMONT NATURAL GAS COMPANY, INC. ET AL.

Appeal from the Circuit Court for Davidson County

No. 18C1746 Kelvin D. Jones, Judge

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No. M2019-00206-COA-R3-CV

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This is a negligence action brought by an absentee homeowner against two public utilities 

to recover compensatory damages. The plaintiff’s unoccupied residence was damaged 

when frozen water pipes ruptured during the winter and after gas service to the property 

was terminated. The defendants, Piedmont Natural Gas, Inc. and Duke Energy One, Inc. 

(collectively, “Defendants”), filed a motion to dismiss pursuant to Tennessee Rules of 

Civil Procedure 12.02(1) and (3), arguing the court lacked original jurisdiction over the 

subject matter and that venue was improper because the Tennessee Public Utility 

Commission (“the Commission” or “the TPUC”) had exclusive and original jurisdiction 

over the claims at issue. The trial court granted the motion and dismissed the action in its 

entirety. This appeal followed. We hold that the Commission did not have original or 

exclusive subject matter jurisdiction over the claims at issue and that the trial court had 

subject matter jurisdiction over the claims at issue, and it was the proper venue. 

Therefore, the judgment of the trial court is vacated and this matter is remanded to the 

trial court with instructions to reinstate the amended complaint filed by the plaintiff, to 

afford Defendants thirty days to file a responsive pleading, and for further proceedings 

consistent with this decision.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated and 

Remanded

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.

BENNETT and W. NEAL MCBRAYER, JJ., joined.

Taylor Payne, Murfreesboro, Tennessee, for the appellant, Donna Jetter.

Paul S. Davidson and Michael C. Brett, Nashville, Tennessee, for the appellees, Piedmont 

Natural Gas Company, Inc. and Duke Energy One, Inc.

10/14/2019
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Aaron J. Coklin, Nashville, Tennessee, for amici curiae Tennessee Public Utility 

Commission. 

OPINION

Donna Jetter (“Plaintiff”) owns unoccupied, residential property located at 23 

Waters Avenue, Nashville, Tennessee, 37206 (“the Property”). In her complaint, Plaintiff 

alleges that Defendants replaced the gas meter at the Property in September 2017, while 

Plaintiff was residing at her primary residence in Sparta, Tennessee. She states she 

received no notice and was unaware the gas service had been terminated until February 

2018, when Metro Water Service notified Plaintiff that thousands of gallons of water 

were flowing at the Property. Plaintiff visited the residence and found the crawl space 

flooded, the Property damaged, and the gas service disconnected. She contends the water 

pipes burst because, without gas service, the furnace was inoperable.

On July 9, 2018, Plaintiff commenced this negligence action in the Circuit Court 

for Davidson County against Defendants, alleging that Defendants damaged her 

residence by removing and replacing a gas meter without providing notice to her and by 

failing to take proper steps to reconnect the service. In her Amended Complaint, Plaintiff 

supported her allegations of negligence by citing to certain rules and regulations adopted 

and enforced by the Commission, alleging that these rules and regulations established a 

duty owed to her by Defendants. Plaintiff also cited various administrative provisions of 

the Tennessee Public Utility Commission Rules (“TPUC Rules”), Tenn. Comp. R. & 

Regs. 1220-01-01-.01 to -04-13-.17, to invoke the doctrine of negligence per se. 

On October 9, 2018, Defendants filed their Tenn. R. Civ. P. 12.02(1) and (3)

motion to dismiss on the grounds that the Circuit Court lacked subject matter jurisdiction 

because the Commission has exclusive jurisdiction to enforce the TPUC Rules cited in 

Plaintiff’s Amended Complaint. Further, Defendants contended that the TPUC Rules 

establish an administrative remedy, which Plaintiff failed to exhaust before filing this 

action. Defendants also argued that the Circuit Court was not the proper venue in which 

to bring Plaintiff’s claims. 

In support of their motion to dismiss, Defendants asserted the TPUC has 

exclusive, initial jurisdiction over alleged gas pipeline violations; therefore, the Circuit 

Court lacked subject matter jurisdiction and was an improper venue. They further alleged 

that Chapter 1220-04-05 of the TPUC Rules governs this dispute, and Plaintiff failed to 

exhaust administrative remedies pursuant to TPUC Rules 1220-04-05-.47(8)(a). 

Plaintiff filed a timely response in opposition to the motion to dismiss relying on 

two main arguments. She asserted that our circuit courts have general jurisdiction over 

negligence claims, so regardless of the fact the Amended Complaint relies upon the 

TPUC Rules to establish Defendants’ duty, Plaintiff’s decision to not follow the 
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procedures in TPUC Rule 1220-04-05-.47 is not dispositive. She also asserts that the 

TPUC does not have the authority to adjudicate negligence claims and award 

compensatory damages.

Following a hearing on December 7, 2018, the trial court granted the motion to 

dismiss in a final order entered on January 9, 2019, which reads: 

Having heard the Motion to Dismiss of Defendants Piedmont Natural Gas 

Company, Inc. (“Piedmont”) and Duke Energy One, Inc. (“Duke”) (the 

“Defendants”) on December 7, 2018, and having considered the pleadings, 

oral argument, and the record as a whole, IT IS HEREBY ORDERED, 

ADJUDGED AND DECREED that the Motion to Dismiss is granted 

without prejudice.1

This appeal followed.

ISSUE

The dispositive issue on appeal is whether the trial court erred in granting 

Defendants’ Motion to Dismiss on grounds that the TPUC had original jurisdiction over 

the Plaintiff’s claims and was the proper venue pursuant to Chapter 1220-04-05 of the 

TPUC Rules.

STANDARD OF REVIEW

A motion to dismiss for lack of subject matter jurisdiction falls within the purview 

of Tenn. R. Civ. P. 12.02(1). Challenges to a court’s subject matter jurisdiction call into 

question the court’s “lawful authority to adjudicate a controversy brought before it.”

Redwing v. Catholic Bishop for Diocese of Memphis, 363 S.W.3d 436, 445 (Tenn. 2012). 

“Subject matter jurisdiction involves the nature of the cause of action and the 

relief sought, and can only be conferred on a court by constitutional or legislative act.”

Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000) (internal citation omitted).

“Since a determination of whether subject matter jurisdiction exists is a question of law, 

our standard of review is de novo, without a presumption of correctness.” Id.

 

1 The record does not reveal whether the trial court made any oral findings of fact or conclusions 

of law from the bench following the hearing. Moreover, nothing in this record reveals the specific 

grounds on which the motion to dismiss was granted other than the court “considered the pleadings, oral 

argument, and the record as a whole.”
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ANALYSIS

Following briefing by the parties, the TPUC filed an Amicus Curiae brief asking 

this court to reverse the ruling of the trial court. In pertinent part, the Commission’s brief 

states:

The case before this Court is an action in tort, alleging damage to real 

property of the Plaintiff, Donna Jetter, (“Ms. Jetter” or “Plaintiff”) occurred 

due to certain actions and/or the omission of certain actions of the 

Defendants, Piedmont Natural Gas Company, Inc. (“Piedmont”) and Duke 

Energy One, Inc. (“Duke Energy”) (collectively, “Defendants”). In support 

of her allegations of negligence, Ms. Jetter cited certain rules and 

regulations adopted and enforced by the Tennessee Public Utility 

Commission (“TPUC” or “Commission”), alleging that such rules and 

regulations established a duty Piedmont and Duke Energy owed to her, the 

breach of which would constitute negligence.

Piedmont and Duke Energy filed a motion seeking dismissal of the [sic] 

Ms. Jetter’s Amended Complaint pursuant to Tenn. R. Civ. P. 12.01 (1) and 

(3). Specifically, Defendants alleged that the Trial Court lacked jurisdiction 

over the facts alleged in Plaintiffs Complaint because the TPUC Rules cited 

in Plaintiffs Amended Complaint are the exclusive jurisdiction of the 

Commission for enforcement. Further, Defendant argued that because these 

Rules establish an administrative remedy that Plaintiff failed to exhaust, the 

Circuit Court for the Twentieth Judicial District lacked jurisdiction and was 

an improper venue for the Plaintiff’s Complaint. The Plaintiff argued in 

opposition to Defendants’ motion that the TPUC Rules contain no 

requirement that alleged tortfeasors engage the administrative enforcement 

process prior to filing a complaint alleging a civil action. The Plaintiff 

further argued that the TPUC Rules provide no remedy to the Plaintiff for 

her damages. Upon consideration of the parties’ arguments, the Trial Court 

granted the Motion to Dismiss.

The Plaintiff’s appeal presents two issues upon appeal, which can be 

singularly summarized as whether the Trial Court erred in granting the 

Defendants’ Motion to Dismiss, as the Trial Court, and not TPUC, is the 

proper forum possessing jurisdiction in the appropriate venue. While TPUC 

takes no position on the merits of any claim or cause of action alleged in 

Plaintiff’s Amended Complaint, the Commission would assert that the Trial 

Court has incorrectly determined the jurisdiction of TPUC in its dismissal 

of the Plaintiff’s Complaint.
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The jurisdiction of TPUC is well established in statute. In addition, 

Tennessee appellate Courts have had numerous opportunities to opine on 

the agency’s jurisdiction, the limitations of the agency to act within its 

jurisdiction, and the boundaries of the agency’s jurisdiction. In summary, 

TPUC is an administrative agency, not a court, and does not possess 

statutory authority to adjudicate cases in tort. Therefore TPUC urges this 

Court to reverse and overturn the ruling of the Trial Court.

Furthermore, the Commission’s brief provides the following analysis of its

jurisdiction as applied to Plaintiff’s claims. That section reads in pertinent part:

To properly put TPUC’s jurisdiction in the context of the instant case, it is 

necessary to understand the nature of the cause of action or causes of action 

alleged in the Amended Complaint of Ms. Jetter. A review of the Amended 

Complaint reveals causes of action sounding in negligence and negligence 

per se in four specific instances. Paragraph 28 of the Amended Complaint 

alleges negligence per se by breach of a duty to read gas meter on a 

monthly basis as required by Tenn. Comp. R. & Regs. 1220-04-05-.09. 

Paragraph 29 of the Amended Complaint alleges negligence per se by 

breach of a duty to give adequate notice of service interruption as required 

by Tenn. Comp. R. & Regs. 1220-04-05-.36. Paragraph 30 of the Amended 

Complaint alleges negligence per se by breach of a duty to reestablish gas 

service following interruption within the shortest time practicable as 

required by Tenn. Comp. R. & Regs. 1220-04-05-.36. Finally, Paragraph 31 

of the Amended Complaint alleges negligence by breach of a duty to 

investigate a service disconnection that remained for an unreasonable 

amount of time. Ms. Jetter also alleges a catch-all negligence claim in 

Paragraph 32, alleging breach of “other duties.”

Ms. Jetter has cited rules and regulations concerning gas companies that the 

TPUC has adopted to implement its exercise of regulatory authority over 

gas companies. The Amended Complaint does not seek injunctive or other 

relief that would serve to force compliance with the rules or to impose civil 

penalties that may be applicable for violation of such rules. Instead, it

would appear from the plain language of the Amended Complaint that Ms. 

Jetter utilizes the cited rules and regulations to establish causes of action 

sounding in negligence per se. The Tennessee Supreme Court has described 

negligence per se as follows:

The standard of conduct expected of a reasonable person may 

be prescribed in a statute and, consequently, a violation of the 

statute may be deemed to be negligence per se. When a 

statute provides that under certain circumstances particular 
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acts shall or shall not be done, it may be interpreted as fixing 

a standard of care . . . from which it is negligence to deviate. 

In order to establish negligence per se, it must be shown that 

the statute violated was designed to impose a duty or prohibit 

an act for the benefit of a person or the public. It must also be 

established that the injured party was within the class of 

persons that the statute was meant to protect.

Cook ex rel. Uithoven v. Spinnaker’s of Rivergate, Inc., 878 S.W.2d 934, 

937 (Tenn. 1994). Violations of rules, regulations or ordinances may also 

be deemed negligence per se. Whaley v. Perkins, 197 S.W.3d 665, 672-73 

(Tenn. 2006). However, the Tennessee Court of Appeals notes that the 

doctrine of negligence per se “is not a magic transformational formula that 

automatically creates a private negligence cause of action for the violation 

of every statute. Not every statutory violation amounts to negligence per 

se.” Rains v. Bend of the River, 124 S.W.3d 580, 590 (Tenn. Ct. App. 

2003). 

Piedmont and Duke Energy contended in their Motion to Dismiss that Ms. 

Jetter lacked standing because the alleged violations are the within the 

exclusive jurisdiction of TPUC, citing an Ohio case, and the failure to 

exhaust administrative remedies, citing a TPUC rule. For reasons further 

explained herein, the matter of State ex rel. Duke Energy Ohio, Inc. v. 

Hamilton Cty. Court of Common Pleas and Tenn. Comp. R. & Regs. 1220-

04-05-.47(8)(a) are inapplicable to the instant case.

In Duke Energy Ohio, a landlord filed a complaint in the Hamilton County 

Court of Common Pleas seeking a temporary restraining order and 

preliminary injunction preventing Duke Energy Ohio from disconnecting 

service during the pendency of a declaratory judgment action concerning 

billed charges and rates, determination of whether landlord was a customer 

authorized to be billed, and whether Duke Energy Ohio is authorized to 

interfere with the landlord-tenant contractual relationship. State ex rel. 

Duke Energy Ohio, Inc. v. Hamilton Cty. Court of Common Pleas, 930 

N.E.2d 299, 301–302 (Ohio 2010).

The present case before this Court does not allege a dispute concerning 

billing, threatened disconnection of service, or other matters that are within 

the exclusive jurisdiction of the Commission. Rather, as described in detail 

above, the causes of action seek damages resulting from alleged instances 

of negligence and/or negligence per se. A thorough examination of the 

enumerated supervisory and regulatory power and jurisdiction of the 

Commission reveals no statutory authority to resolve disputes alleging 
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negligence, nor to award damages for such disputes. As indicated in the 

jurisdictional section above, it has long been held that agency exercises 

legislative and executive functions, and the quasi-judicial function to 

determine controversies in certain instances, is merely incidental and does 

not create a court that exercises judicial functions. In re Cumberland Power 

Co., 249 S.W. 818, 821 (Tenn. 1923). The Tennessee Code does not confer 

upon TPUC the power and jurisdiction to adjudicate cases and 

controversies based in tort and seeking damages on grounds of negligence. 

Unable to exercise authority not specifically granted to it by statute, the 

Commission is without authority to adjudicate the claims alleged in Ms. 

Jetter’s Amended Complaint. See BellSouth Telecommunications, Inc. v. 

Greer, 972 S.W.2d 663, 680 (Tenn. Ct. App. 1997).

Further, Piedmont and Duke Energy argued that the Trial Court was 

without jurisdiction and was an improper venue because Ms. Jetter failed to 

exhaust administrative remedies found in TPUC Rules. Specifically, 

Defendants asserted that Section 8, titled “Commission Action,” of Tenn. 

Comp. R. & Regs. 1220-04-05-.47 requires a violation to be referred to 

TPUC for formal resolution. However, application of this rule to the 

alleged violations in Ms. Jetter’s Amended Complaint is misguided. The 

rules cited in Ms. Jetter’s Amended Complaint are found in the rules 

implementing the supervisory and regulatory power and authority conferred 

by, and enforcing the requirements established by, Tennessee statutory law. 

The rule cited in Piedmont/Duke Energy’s Motion to Dismiss is distinct 

from the previous rules in that it is the process by which the State of 

Tennessee enforces federal regulations on gas pipeline safety pursuant to 

the Natural Gas Pipeline Safety Act, 49 U.S.C.A. § 60101 et seq. The title 

of the rule, “Enforcement Procedures Governing Gas Pipeline Safety,” the 

inclusion of a definitional section at the beginning of the rule, and citation 

to the federal law, offer an indication that the rules that follow have a 

different operation than the rules that precede. Indeed, the subsequent rule, 

Tenn. Comp. R. & Regs. 1220-04-05-.48 indicates TPUC’s adoption of 

federal safety standards and regulations concerning the transportation of 

natural and other gas by pipeline. Hence, while the rule Piedmont/Duke 

Energy cites establishes a procedure by which TPUC processes a 

complaint, it only addresses procedure concerning alleged violations of the 

federal safety standards and regulations specific to gas pipeline safety, not 

the state regulations addressing service, billing and rates.

As for Defendants’ contention that Plaintiff failed to exhaust her administrative 

remedies before the Commission, the exhaustion of administrative remedies is not an 

absolute prerequisite for relief unless a statute makes such requirement by its plain 

language. Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 839 (Tenn. 2008); see also 
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Thomas v. State Bd. of Equalization, 940 S.W.2d 563, 566 (Tenn. 1997); Reeves v. Olsen, 

691 S.W.2d 527, 530 (Tenn. 1985). Moreover, the Commission notes in its brief that “if 

Rule [1220-04-05]-.47 were applicable, the Natural Gas Pipeline Safety Act provides an 

administrative remedy that operates in addition to any other remedy provided by law, 

specifically stating that it ‘does not restrict a right to relief that a person or a class of 

persons may have under another law or at common law.’” (quoting 49 U.S.C.A. 

§ 60121(d)).

Following the filing of the Amicus Curiae brief, Defendants informed Plaintiff and 

filed notice with this court that “they no longer contest the jurisdiction of the Trial 

Court.”2 At oral argument, the court informed counsel that they were welcome to present 

their oral arguments to the court; however, the court was of the belief that arguments 

were not necessary based on Defendants’ recent concession that the trial court had 

subject matter jurisdiction. Therefore, counsel did not present oral arguments.

Based on our review of the record, the briefs filed by the parties and the Amicus 

Curiae brief filed by the Commission, we hold that the Commission did not have original 

or exclusive subject matter jurisdiction over the claims at issue and that the trial court had 

subject matter jurisdiction over the claims at issue, and it was the proper venue. 

IN CONCLUSION

The judgment of the trial court is vacated, and this matter is remanded to the trial 

court with instructions to reinstate the amended complaint filed by Plaintiff, to afford 

Defendants thirty days to file a responsive pleading, and for further proceedings 

consistent with this decision. Costs of appeal are assessed against the Appellees, 

Piedmont Natural Gas Company, Inc. and Duke Energy One, Inc.

________________________________

 FRANK G. CLEMENT JR., P.J., M.S.

 

2 The week before oral argument Defendants filed a motion to waive oral arguments and advised 

the court they had contacted Plaintiff’s counsel “to propose filing a joint stipulation dismissing this appeal 

and filing an agreed order to vacate the Trial Court’s Order Granting Defendant’s Motion to Dismiss” and 

that Plaintiff’s counsel insisted that the appeal move forward. As a consequence, counsel for the parties 

appeared for oral arguments.