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Almasri v. Hyde-Smith

Court of Appeals of Mississippi

June 12, 2018

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

          LEE COUNTY CHANCERY COURT HON. JOHN ANDREW HATCHER TRIAL JUDGE

          ATTORNEY FOR APPELLANT: WILLIAM C. STENNETT

          ATTORNEY FOR APPELLEES: ROBERT W. GRAVES

          BEFORE LEE, C.J., GREENLEE AND TINDELL, JJ.

          GREENLEE, J.

         ¶1. Ali Almasri operates a gas station, Bull Market #23, where he sells ethanol-blended gasoline and conventional (non-ethanol) gasoline. After a state petroleum inspector performed a routine test on Almasri's ethanol-blended tank, the tank tested positive for water. The inspector then sent samples from the tank to the state chemical laboratory, where further testing and analysis confirmed the ethanol-blended gasoline Almasri was selling contained water, in violation of Mississippi Code Annotated section 75-55-11 (Rev. 2016).[1] Thereafter, the Mississippi Department of Agriculture and Commerce (MDAC) sought a permanent injunction prohibiting Almasri from selling or distributing ethanol-blended gasoline at his station. During an evidentiary hearing, Almasri challenged the State's testing methods, and both he and the State presented expert testimony concerning proof of the water found in the tank. Finding the State's expert to be more credible, the chancellor entered a judgment on November 23, 2016, finding the State used the proper testing method to determine that the ethanol-blended gasoline at Almasri's station contained water. Further, the chancellor issued a permanent injunction prohibiting Almasri from selling or dispensing ethanol-blended gasoline at Bull Market #23, finding that immediate and irreparable injury, loss, or damage would be inflicted on those who bought or received the product. Fifty-five days after the chancellor entered the judgment, Almasri filed a motion to extend the time in which to file a notice of appeal, which the chancellor granted.

         ¶2. Finding Almasri failed to show excusable neglect as to why he did not timely file a notice of appeal, we dismiss for want of jurisdiction.

         BACKGROUND

         ¶3. Ali Almasri operates the Bull Market #23, a gasoline station in Guntown, Mississippi. The Bull Market station has four nozzles that dispense ethanol-blended gasoline and four that dispense conventional (non-ethanol) gasoline. The station has two underground tanks: one containing ethanol-blended gasoline, and another containing conventional gasoline. One line from the ethanol tank services the four ethanol pumps, and another line from the conventional tank services the four conventional pumps.

         ¶4. On March 7, 2016, Toby Hill, a state petroleum inspector, performed a routine inspection[2] of the ethanol-blended tank at Bull Market #23. The gasoline in the tank tested positive for water. The inspector then pulled a sample for further testing and analysis, and sent it to the state chemical laboratory at Mississippi State University. Lab tests confirmed that the sample contained water.

         ¶5. On March 9, 2016, Hill issued a stop sale notice and "red tagged" the four ethanol- blended nozzles at Almasri's station by placing plastic restraints on them. However, the plastic restraints were cut off, and customers began obtaining gasoline from the pumps.[3]Following removal of the restraints, the MDAC received approximately five or six complaints from customers who experienced engine stall-outs after purchasing ethanol-blended gasoline from Almasri's station. When Hill confronted one of Almasri's store clerks with the complaints, the clerk said that Almasri told her that "everything was fine" and so the station began selling ethanol-blended gasoline again. On May 30, 2016, Hill issued another stop sale notice and replaced the restraints on the ethanol-blended nozzles.

         ¶6. As a result of Almasri's violation of the stop sale notices, the MDAC commissioner and the state chemist sought an injunction to enjoin Almasri from selling ethanol-blended gasoline. On June 13, 2016, the chancellor issued a temporary restraining order, in which the petroleum inspector was ordered to pull and submit samples from each ethanol-blended pump to the state chemical lab for analysis. The order further prohibited Almasri from selling or giving away any ethanol-blended gasoline, and required that the ethanol-blended pumps remain locked down. On June 28, 2016, the chancellor converted the temporary restraining order into a preliminary injunction.

         ¶7. On July 28, 2016, in anticipation of a hearing on the State's request for a permanent injunction, Hill pulled gasoline samples from each of the four ethanol-blended pumps at Almasri's station and delivered the samples to the state chemical lab ...


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