IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2017-CA-00163-COA ALI M. ALMASRI APPELLANT

v. CINDY HYDE-SMITH, COMMISSIONER OF THE MISSISSIPPI DEPARTMENT OF AGRICULTURE AND COMMERCE AND DR. ASHLI BROWN, STATE CHEMIST APPELLEES

DATE OF JUDGMENT: 11/23/2016 TRIAL JUDGE: HON. JOHN ANDREWHATCHER COURT FROM W HICH APPEALED: LEE COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: W I LLIAM C. STENNETT ATTORNEY FOR APPELLEES: ROBERT W . GRAVES NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES DISPOSITION: APPEAL DISMISSED - 06/12/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., GREENLEE AND TINDELL, JJ. GREENLEE, J., FOR THE COURT: ¶1. Ali Alm asri operates a gas station, Bull Market #23, where he sells ethanol-blended gasoline and conven t i onal ( non-ethanol) g asoline. Af t er a state petroleum inspector perf orm ed a routine test on A lm asri’s ethanol-blended tank, the t a n k t e sted positive f or
water. The inspector then s ent sam ples f rom the tank to the s tate chem ical laboratory , where f urther testing and analy sis conf irm ed the ethanol-blended gasoline Alm asri was selling contained water, in violation o f M ississippi Code Annotated section 7 5-55-11 ( Rev. 2016). 1

1 S ectio n 7 5 -5 5

- 1 1 p r o v id es th at “[ n ] o p erso n sh all sell g aso lin e w h ich f ails to m eet th e stan d ard ” d ef

in e d b y C h ap ter 5 5

. U n d er s ectio n 7 5 -5 5 -3 (3 ), th e C o mm issio n er o fThereaf

ter, the M ississippi Departm ent of Agriculture and Comm erce (MDAC) sought a perm anent injunction prohibit i n g A l m asri f rom s elling o r distributing ethanol-blended gasoline at his station. During an evidentiary hearing, Alm asri c hallenged the State’s testing

m ethods, and both he and the State presented expert testim ony concerning proof of the water f ound in the t ank. F inding the State’s expert to b e mo r e credible, the chancellor entered a judgm ent on N ovem

ber 2 3, 2016, f

inding th e S t a t e u s e d the p roper testing m ethod to determ ine that the ethanol-blended gasoline at Al ma s r i ’s station contained water. Further, the chancellor issued a p erm anent injunction p rohibiting Alm asri f rom selling or d ispensing ethanol-blended gasoline at Bull Market #23, f inding that imm ediate and i rreparable injury , loss, or dam age would be inf licted on those who bought or received the p roduct. Fif ty -f ive day s af t er the chancellor entered the judgm ent, A lm asri f iled a m otion to extend the tim e in which to f

ile a notice of

appeal, which the chancellor granted. ¶2. Finding A lm asri f

ailed to s how excusable neglect as to w hy he did not t im ely f ile a notice of appeal, we dism i ss f

or want of jurisdiction. BACKGROUND ¶3. Ali Alm asri o perates the Bull Market # 23, a gasoline station in Guntown, Mississippi. The Bull Market station has f o ur nozzles that dispense ethanol-blended gasoline and f our that dispense conventional (non-ethanol) gasoline. The s tation has two underground tanks: one

A g ricu ltu re an d C o mm erce “an d t h e S t a te C h em ist sh a ll h av e j o in t au th o rity f o r settin g sp ecif icatio n s o f p etro leu m p ro du cts an d sh a ll h av e th e au th o r ity to estab lish ru les an d reg u latio n s in co n n ectio n w ith e n f o rcem e n t o f

. . . [ C h a

p ter 5 5 ] .” T h e state reg u latio n reg ard in g w ater to l eran ce r eq u ires th at n o p h a se sep aratio n m ay o ccu r. M iss. A d m in

. C o d e § 2 -1 -4 :0 8 2containing ethanol-blended g a s o l i n e, and another containing conventional gasoline. One line

f rom the ethanol tank services the f our e t h a n o l pum

ps, and another l ine f

rom the conventional tank services the f our conventional pum

ps. ¶4. O n M a r c h 7 , 2 016, Toby Hill, a state petroleum inspector, perf orm ed a r o u t i n e inspection 2 of

the ethanol-blended tank at Bull M arket # 23. The gasoline in the tank tested positiv e f o r water. The inspector then pulled a sam ple f or f urther testing and analy sis, and sent it to the state chem ical laboratory at Mississippi State University

. Lab tests conf irm ed that the sam

ple contained water. ¶5. On March 9, 2016, Hill issued a stop sale notice and “red tagged” the f our ethanolb l e n ded nozzles at Alm asri’s station by placing plastic restraints on them

. However, th e plastic restraints w ere c ut of f , and custom ers began obtaining gasoline f rom th e p u mp s . 3 Following rem oval of the restraints, th e MDAC received approxim ately f i ve or six

com plaints f rom custom ers who experienced e n g ine stall-outs a f ter purchasing ethanol-blended gasoline f rom Alm asri’s station. When Hill c onf ronted o ne o f A l masri’s
store clerks with the com plaints, the clerk said that A lm asri told her that “every thing was f ine” and s o the station began selling ethanol-blended gasoline again. On May 30, 2016, Hill

2 T h e M D A C i s c h arg e d w ith ch eck in g g as s tatio n s p erio d ically f o r s i g n ag e, p u m

p calib ratio n , eth a n o l c o n ten t, an d w ater co n t en t. Wh e n a p etro leu m in sp ecto r co n du cts a ro u tin e in s p ectio n o f an eth an o l-b len d ed tan k f o r w ater, h e p u ts a p aste o n th e b o tto m o f a w o o d en s t ick an d in serts it in th e u n d erg ro u n d tan k

. If th ere is o n e-q u arter in ch o r m o re o f w a ter o n th e s t ick , th e p u m p is i mm ed i ately p u t u n d er a sto p sale n o tice. T h is is ref erred to as a “sticktest.”

3 It w as u n c o n tested th at th e p lastic restrain ts w e r e r e m o v ed

. A lm asri asserted th at cu sto m ers cu t th em

o f f

. 3issued another stop sale notice and replaced the restraints on the ethanol-blended nozzles.

¶6. As a result of Alm a sri’s violation of the s top sale notices, the MDAC comm issioner and the state chem ist sought an inj u n c t i o n to enjoin Alm a sri f rom selling ethanol-blended gasoline. On June 13, 2016, the chancellor issued a tem p orary restraining order, in which the petroleum ins p e c t o r w a s o r d e r e d t o p ull and subm i t sam p les f rom e a ch ethanol-blended pum p
to the s t a te c hem ical lab f or analy sis. The o rder f

urther prohibited Alm asri f rom selling or giving away any e thanol-blended gasoline, and required that the e thanol-blended pum ps

rem ain locked down. On June 28, 2016, the chancellor converted the tem porary r estraining order into a prelim inary

injunction. ¶7. On July 28, 2 016, i n anticipation of a hearing on the State’s request f or a perm anent injunction, Hill pulled gasoline sa mp l e s f r om each of the f

o ur ethanol-blended pum ps at Alm asri’s station and delivered the s am ples to the state chem ical lab f o r t e s t i ng. The lab determ ined that all f

our sam ples tested positive f

or water. ¶8. On August 10, 2 0 16, the chancellor heard argum ent s o n t h e S t a t e ’s request f or a perm anent injunction. Dr. Darrell Sparks, the d irector of the petroleum p roducts d ivision of the s tate chem ical l ab at M i ssissippi State Uni v e rsity , testif i ed f or the State. Dr. Sparks
t e s t i f ied that the p resence of water can dam age an i nternal com bustion engine, and that i n order to determ ine whether a sam ple of gasoline c ontains too m uch water, the state chem ical lab uses the “ phase s eparation” standard. Dr. S parks stated that phase s e paration is the testing

m ethod required by the Ame r ican Society f o r Testing Materials (“ASTM”) D4814, which Mississippi h as adopted as a s tate regulation. He e xplained that the phase separation standard

4does not lim it w a t e r p resence to a particular percentage; rather, i t requires that no visual

separation o f w a t e r a n d gasoline exists to the naked ey e. Dr. Sparks f urther testif

ied that photographs of the f

our sam ples pulled f

rom Bull M arket on July 28, 2016, revealed visually apparent phase separation, which indicated that the sam p les tested positive f

or water. ¶9. Dr. Donald Heck, Director of the Iowa Central Fuel Testing Laboratory , testif ied f or Alm asri by deposition. Dr. Heck explained that his laboratory uses A STM m ethods and conducts several f

uel-related activities, including m o isture tests of ethanol-blende d gasoline.
Dr. Heck f

urther testif

ied that Alm asri sent him a sam ple of ethanol-blended g asoline f or the
purpose o f m oisture testing. Dr. Heck said he tested the sam ple u sing ASTM E 203, the volum etric Carl Fisher Moisture Test. D r . Heck stated that h e conducted two rounds of testing. He explained that the f irst round of t ests indicated that A lm asri’s sam ple h ad a .141%

m oisture content, which is an acceptable am ount of m oisture f or an E10 4 blend of gasoline.
Dr. Heck stated that he conducted a second round of tests af ter the State expressed a concern that A lm asri’s sam

p l e ma y c o n sist of gasoline taken f rom the top of gasoline with phase separation and would theref ore not contain the sam e am ount of m o isture as the sam ples sent
to the state chem ical laboratory

. Dr. H e c k stated that the s e cond round of tests did not indicate phase separation in the sam ple. H owever, Dr. Heck a dm itted that a m oisture content of

. 1 4 1% would equate to a phase separation of r oughly 10%, which would be visible to the naked ey e. He also a dm itted that Mississippi f ollows ASTM D4814, which states that visual inspection is the m ethod required f or detecting water in gasoline.

4 A n E 1 0 b len do f

g aso lin e co n tain s 9 0 % g a so lin e an d1 0 % eth an o l.

5¶10. Dr. Sparks testif ied by deposition in rebuttal f or the State. Dr. Sparks stated that Dr. Heck’s testing m ethod f

or m oisture content dif

f e r ed f rom that of p hase s e p a

r ation. Dr. Sparks explained that m oisture content ref ers to the am ount of water present in a gasoline sam ple, whereas p hase separation occurs when the am ount of w a t er in the gasoline phase exceeds the saturation point and the water starts to f orm its own phase. Dr. Sparks stated that Dr. Heck’s

m ethod was inconsistent with the m ethod required by Mississippi law. In addition, he said that the sam

ple Alm a sri subm i tted to Dr. Heck was adulterated because i t was taken f rom a p o r t i o n of a larger sam

ple f rom Alm asri’s underground tank. Dr. Sparks s tated that Dr

. Heck’s f inding of a 10% phase separation would f ail by Mississippi standards. ¶11. On Novem

ber 23, 2016, the chancellor entered a j udgm ent f inding the State’s use of phase separation to be the p roper m ethod of testing. The chancellor f o und that the gasoline

sam ples f rom Bull M a r k e t # 2 3 contained water, and he issued a p erm anent injunction prohibiting Alm asri f

rom selling ethanol-blended gasoline at his station. ¶12. On January 17, 2 0 1 7 , A l ma s r i f iled a m otion to e xtend the tim e in which to f ile a notice of a

ppeal. His m otion stated that h e was unable t o tim e ly f ile notice because he could
not com plete a personal analy sis of his business within the thirty -day f iling period. Alm asri f urther argued that he acted i n g o o d f a ith and theref

ore the chancellor should grant his

r e q u e s ted extension. O n February 2, 2017, the chancellor granted A lm asri’s requ e s t extending his f

iling d eadline until February 6 , 2017. Alm asri f i led his notice of a

ppea l on January 3 0 , 2 0 1 7

. The State argues that A lm asri d id not dem onstrate excusable neglect to receive an extension, his n o tice was theref ore untim ely , and this appeal should be dism issed

6f

or lack of jurisdiction. DISCUSSION ¶13. Our appellate procedural rules require that a notice of appeal m ust be f iled “within 30 day s af ter the date of entry of the judgm ent o r o rder appealed f rom .” M.R.A.P. 4(a). Should

a p arty need additional tim e to f ile a n otice of appeal, the trial court m ay g rant an extension under Rule 4(g), which provides: The trial court m ay

extend the tim e f

or f iling a notice of a

p peal upon m otion f iled not later than 30 day s a f ter the expiration of the tim e otherwise prescribed by this rule. Any such m otion which is f iled b ef ore expiration of the prescribed tim e m ay be g ranted f

or good cause and m ay b e ex parte unless the court otherwise requires. Notice of any such m otion which is f

iled af ter expiration of the prescribed t im e shall be given to other parties, and the m otion shall be granted only upon a showing of excusable neglect

. (Em phasis added). ¶14. In the instant case, the chancery c o u r t e n t e r e d t h e j u d g ment appealed f rom on Novem ber 23, 2016. The thirty

- day appe a l p e r iod theref ore ended on Decem

ber 23, 2016. Alm asri f i led his m otion to f

ile an out-of

-tim e appeal on J anuary 1 7, 2 017, f if t y - f i v e day s af ter the judgm e nt was en t e r e d. Theref ore, in order to r eceive additional tim e to f ile his

n otice of appeal, Alm a sri had the burden of showing that his f ailure t o f ile a ti me l y n o t i c e

was a result of “excusable n eglect.” Id. ; Schmitt v. Capers ( In re Estate of W

are) , 573 So. 2d 773, 775 (Miss. 1990). ¶15. W e review a trial court’s excusable-neglect d eterm ination with a bif urcated standard.
Nunne r y v
. N u n n e r y , 1 95 So. 3d 747, 751 (¶12) (Miss. 2016). To the extent that the trial court’s excusable-neglect determ i nation involves the determ ination of legal principles, we

7will conduct a d e n o v o r e v iew. L ong v. Mem’l Hosp. a t G ulfport , 969 S o. 2 d 3 5, 38 (¶5)

(Miss. 2007). “[ W ] h en . . . the trial judge’s decision rests upon an e xam ination of f acts, we review f or abuse o f discretion and to ensure the d ecision i s supported by s u bstantial evidence.” Nunnery , 195 So. 3d at 751 (¶12). “Which standard to apply is a decision t o be

m ade o n an ad h oc basis.” Id. (citing Bennett v. McCaffrey , 937 So. 2d 11, 14 (¶8) (Miss. 2006)). ¶16. “An excusable-neglect determ ination is at bottom an equitable one, taking account of all relevant ci r c u m stances surrounding the party ’s om ission.” I d. at 752 (¶15) (internal quotation m ark om itte d )

. T h e M i s sissippi Suprem e Court has adopted the f ollowing f

our-part
test f or excusable-neglect: “(1) the danger of prejudice to the n on-m ovant, (2) the length of the delay and its potential im pact o n j u d i c i a l p roceedings, (3) the reason f or the delay , including whether it was w i t h i n t h e r easonable control of the m ovant, and (4) whether the

m ovant acted i n g o o d f

a i th.” Id. (internal quotation m arks om i tted) (quoting Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd. P’ship , 507 U.S. 380, 397 (1993)). ¶17. “[ E]xcusable neglect is a very strict standard.” W ebster v
. W

ebster , 834 So. 2d 26, 29 (¶11) (Miss. 2002) ( internal quotation m ark om i tted). “[ S]im ple inadvertence or m istake of counsel or i gnorance of the ru l e s u s u a l l y does n ot” constitute excusable neglect. Stutts v. Miller , 3 7 So. 3d 1, 4 (¶9) (Miss. 2010); Holmes v
. Co ast Transit Auth. , 815 So. 2d 1183, 1186 (¶11) ( Miss. 2 002). “Filing a n otice i s a sim ple act, and a party m

ust do all it c ould reasonably be e xpected to do to perf ect the appeal in a tim e l y f ashion.” Byrd v. Biloxi Reg’l Med. Ctr. , 722 So. 2d 166, 169 (¶13) (Miss. Ct. App. 1998).

8¶18. In his m otion f or an extensi o n of tim e, Alm asri stated that “his decision [ to appeal]

was based upon his own personal business analy sis that was not com pleted until af

ter the [ thirty ][ -]day [ f

iling] period

. . . had e xpired.” Further, he argued that “he at all tim es acted i n g ood f aith” and “his considered decision should am ount to good cause . . . to grant his requested extension.” Again, a m otion f or an extension f

iled af ter expiration of the thirty -day f iling p eriod requires a showing of e x c u s a ble neglect, rather than g ood cause. In re Estate of W are , 573 So. 2d at 775. ¶19. From the record, it is unclear whether the chancellor granted Alm asri’s m otion based

on good cause or excusable neglect. However, even assum ing the chancellor used the correct standard in m aking his decision, we f ind that Alm asri did n ot dem onstrate excusable neglect. Alm asri knew the entry date of the f inal judgm ent against him , and there i s no assertion that he was unaware of his deadline to f ile a notice of appeal. Further, Alm a sri of f ers no evidence of w hy he was unable to c om plete h is b usiness analy s is within the thirty -day period f ollowing f inal judgm ent or why such would be excusable neglect. W e thus f ind A lm asri’s r eason f

or delay was within his reasonable c ontrol. And although Alm asri m ay have a cted in good f aith, “[ e]quity aids the v igilant and not those who slum b er on their rights.” In re Estate of
W inding , 783 So. 2d 707, 711 (¶15) (Miss. 2001). ¶20. Under Rule 4(g), the chancellor’s d i s c r e t i o n t o g r a n t A l ma s r i ’ s m otion f or an extension was lim ited; he only had authority to grant the m otion upon a showing of excusable neglect. Alm asri m ade no such s howing to the tr i al court. Theref ore, we hold that the chancellor abused his discretion in granting Alm asri’s m o tion to extend the t im e in which

9to f

i le a notice of

appeal. ¶21. This appeal is dism issed f or lack of jurisdiction. ¶22. APPEAL DISMISSED. LEE, C .J., IRVING A ND GRIFFIS, P.JJ ., BARNES, CARLTON, FAIR, WILSON, WESTBROOKS AND TINDELL, JJ., CONCUR.

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