                                                                                          10/14/2019
               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
                     ___________________________________

                           No. M2019-00206-COA-R3-CV
                       ___________________________________

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.
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
                                           -2-
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.”
                                                  -3-
                                         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.


                                            -4-
       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
                                            -5-
       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
                                    -6-
      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
                                          -7-
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.
                                                    -8-
