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BP Re, L.P v. RML Waxahachie Dodge, L.L.C.

United States Court of Appeals, Fifth Circuit

February 28, 2014

In the Matter of: BP RE, L.P., Debtor.
v.
RML WAXAHACHIE DODGE, L.L.C.; RML-MCLARTY-LANDERS AUTOMOTIVE HOLDINGS, L.L.C; RML WAXAHACHIE FORD, L.L.C; RML WAXAHACHIE GMC, L.L.C.; RLJ-MCLARTY-LANDERS AUTOMOTIVE GROUP, Appellees BP RE, L.P., Appellant,

Appeals from the United States District Court for the Western District of Texas.

For BP RE, L.P., Appellant (12-51270, 12-51279): Kevin James Terrazas, Esq., Weisbart Springer Hayes, L.L.P., Austin, TX.

For RML WAXAHACHIE DODGE, L.L.C., RML-MCLARTY-LANDERS AUTOMOTIVE HOLDINGS, L.L.C., RML WAXAHACHIE FORD, L.L.C., RML WAXAHACHIE GMC, L.L.C., RLJ-MCLARTY-LANDERS AUTOMOTIVE GROUP, Appellees (12-51270, 12-51279): Lyndel Anne Mason, Esq., Senior Counsel, Rodney Lawrence Poirot, Michael Wayne Sebesta, Cavazos, Hendricks, Poirot & Smitham, P.C., Dallas, TX; Rodney Fred Page, Esq., U.S. Attorney, Bryan Cave, L.L.P., Washington, DC; Brian Christopher Walsh, Esq., Bryan Cave, L.L.P., Saint Louis, MO.

For COMMERCIAL LAW LEAGUE OF AMERICA, Amicus Curiae (12-51270, 12-51279): Stephen W. Sather, Barron, Newburger & Sinsley, P.L.L.C., Austin, TX.

Before SMITH, GARZA, and SOUTHWICK, Circuit Judges. HIGGINSON, Circuit Judge, with whom, STEWART, Chief Judge, JOLLY,[1] DAVIS, DENNIS, and GRAVES, Circuit Judges, join, dissenting from the denial of rehearing en banc.

OPINION

ON PETITION FOR REHEARING EN BANC

(Opinion November 11, 2013, 735 F.3d 279)

PER CURIAM:

Treating the petition for rehearing en banc as a petition for panel rehearing, the petition for panel rehearing is DENIED. The court having been polled at the request of one of its members, and a majority of the judges who are in regular active service and not disqualified not having voted in favor (Fed. R. App. P. 35 and 5TH CIR. R. 35), the petition for rehearing en banc is DENIED.

In the en banc poll, 6 judges voted in favor of rehearing (Chief Judge Stewart and Judges Jolly, Davis, Dennis, Graves, and Higginson, and 8 judges voted against rehearing (Judges Jones, Smith, Clement, Prado, Owen, Elrod, Southwick, and Haynes).

JERRY E. SMITH, United States Circuit Judge.

DISSENT

HIGGINSON, Circuit Judge, with whom, STEWART, Chief Judge, JOLLY, DAVIS, DENNIS, and GRAVES, Circuit Judges, join, dissenting from the denial of rehearing en banc:

I write in dissent of denial of full court rehearing to note that this case presents an en banc worthy issue--whether a bankruptcy court, consistent with its statutory authority under 28 U.S.C. § 157(c)(2), may enter final judgment in a non-core proceeding with the parties' consent. The panel opinion holds that it cannot do so consistent with Article III of the United States Constitution. The Supreme Court has granted certiorari and heard argument in Executive Benefits Insurance Agency v. Arkison (In re ...


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