ELECTRONIC CITATION: 2006 FED App. 0004P (6th Cir.)

File Name: 06b0004p.06

BANKRUPTCY APPELLATE PANEL OF THE SIXTH CIRCUIT

In re: THICKSTUN BROTHERS 

EQUIPMENT CO., INC.,

Debtor.

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THICKSTUN BROTHERS 

EQUIPMENT CO., INC., 

Appellant,

v.

ENCOMPASS SERVICES CORPORATION, 

Appellee.

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No. 05-8054

Appeal from the United States Bankruptcy Court

for the Southern District of Ohio, Eastern Division at Columbus.

No. 03-61982.

Argued: February 1, 2006

Decided and Filed: June 2, 2006

Before: GREGG, SCOTT, and WHIPPLE, Bankruptcy Appellate Panel Judges.

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COUNSEL

ARGUED: Michael D. Bornstein, RICKETTS CO., L.P.A., Pickerington, Ohio, for Appellant.

Charles F. Merz, CHARLES F. MERZ & ASSOCIATES, Louisville, Kentucky, for Appellee. ON

BRIEF: Michael D. Bornstein, RICKETTSCO.,L.P.A.,Pickerington, Ohio, for Appellant. Charles

F. Merz, CHARLES F. MERZ & ASSOCIATES, Louisville, Kentucky, for Appellee.
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OPINION

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JAMES D.GREGG,BankruptcyAppellate Panel Judge. Thickstun Brothers Equipment Co.,

Inc. (the “Debtor”) appeals a bankruptcy court order denying its motion for interpretation and

clarification of its confirmed chapter 11 plan (the “Motion for Interpretation”) for lack of

jurisdiction. For the following reasons, the court’s jurisdictional determination is AFFIRMED in

part, REVERSED in part, and REMANDED.

I. ISSUES ON APPEAL

The issues on appeal are whether the bankruptcy court erred in holding: (1) that it lacked

subject matter jurisdiction to determine whether the Debtor’s failure to object to a creditor’s claim

was entitled to preclusive effect in pending state court litigation, and (2) that it lacked subject matter

jurisdiction to interpret the Debtor’s confirmed chapter 11 plan as preserving the Debtor’s right to

object to the creditor’s claim in the bankruptcy proceeding.

II. JURISDICTION AND STANDARD OF REVIEW

For purposes of appeal, an order is final if it “ends the litigation on the merits and leaves

nothing for the court to do but execute the judgment.” Midland Asphalt Corp. v. United States, 489

U.S. 794, 798, 109 S. Ct. 1494, 1497 (1989). Thus, the bankruptcy court’s order denying the

Debtor’s motion for lack of jurisdiction constitutes a “final” order, see, e.g., IBM Credit Corp. v.

Compuhouse Sys., Inc., 179 B.R. 474, 475 (W.D. Pa. 1995), aff’d, 85 F.3d 612 (3d Cir. 1996)

(Table), and may be appealed as of right. 28 U.S.C. § 158(a)(1). The United States District Court

for the Southern District of Ohio has authorized appeals to the Bankruptcy Appellate Panel, and

neither party has timely elected to have this appeal heard by the district court. 28 U.S.C.

§§ 158(b)(6), (c)(1). Accordingly, the Panel has jurisdiction to decide this appeal.
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The bankruptcy court’s determination that it lacked subject matter jurisdiction over the

Debtor’s Motion for Interpretation is reviewed de novo. See Gordon Sel-Way, Inc. v. United States

(In re Gordon Sel-Way, Inc.), 270 F.3d 280, 284 (6th Cir. 2001). “De novo means that the appellate

court determines the law independently of the trial court's determination.” Treinish v. Norwest Bank

Minn., N.A. (In re Periandri), 266 B.R. 651, 653 (B.A.P. 6th Cir. 2001). 

III. FACTS

The Debtor and Encompass Services Corporation, f/k/a Reliable Mechanical, Inc.

(“Encompass”) hold claims against each other stemming from alleged breaches of a construction

contract at the Rickenbacker Air National Guard Base near Columbus, Ohio. In December 1997,

Encompass initiated litigation of its claims against the Debtor and the Debtor’s surety in the Circuit

Court of Jefferson County, Kentucky. The Debtor filed a counterclaim against Encompass in the

Kentucky litigation. In January 2000, the Debtor also filed an action against Encompass’s surety in

the United States District Court for the Southern District of Ohio (the “Miller Act Case”).

 On August 8, 2003, the Debtor filed a voluntary petition for relief under chapter 11 of the

Bankruptcy Code. The Debtor’s schedules listed Encompass’s claim as disputed, contingent, and

unliquidated. On September 30, 2003, Encompass filed an $860,000 proof of claim, representing

the amount of its breach of contract claims against the Debtor. 

The Debtor filed its first amended plan of reorganization (the “Plan”) on April 8, 2004, and

the bankruptcy court entered an order confirming the Plan on June 17, 2004. The Plan requires the

Debtor to object to claims within sixty days after its effective date. The Debtor concedes that it did

not file an objection to Encompass’s claim by the deadline specified in the Plan (or at any time

thereafter). However, the Debtor asserts that language in its Plan and Disclosure Statement indicates

that Encompass’s claim is disputed and will be litigated in proceedings outside of the bankruptcy

court. Specifically, the Plan provides that “[a] party whose Claim was listed as disputed, contingent

and/or unliquidated in Debtor’s schedules before the proof of Claim bar date shall not have an

Allowed Claim unless agreed to by the Debtor . . . .” (Plan art. I.3.; J.A. at 3.) The Plan also defines

the terms “Miller Act Case” and “Miller Act Recovery” and establishes a distribution scheme for the
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potential Miller Act Recovery. (Plan art I.16-17, IV.3-.4; J.A. at 4-5, 9-11.) The Debtor’s

Disclosure Statement contains a slightly more detailed description of the Debtor’s claim in the Miller

Act Case. The Disclosure Statement also identifies potential counterclaims against the Debtor and

states the Debtor’s belief that any such claims are without merit.

The Plan further provides that the bankruptcy court will retain post-confirmation jurisdiction

for certain purposes, including to “determine the classification, validity and amount of, or to allow

or disallow, any and all Claims herein to which any party to these proceedings, including the Debtor,

objects,” to “hear and determine controversies concerning and to adjudicate interests in the property

of or transferred by the Debtor,” and to “secure execution of the provisions of this Plan.” (Plan art.

XII.E; J.A. at 16.) Paragraph 13 of the confirmation order also states: “This Court retains

jurisdiction over post confirmation matters as set forth in 11 U.S.C. §§ 1141 to 1146, as required by

the Federal Rules of Bankruptcy Procedure, Local Bankruptcy Rules, or as set forth in the confirmed

Plan.” (J.A. at 127.) 

On September 27, 2004, Encompass filed a motion for summary judgment in the Kentucky

state court litigation. Encompass’s motion asserted that the res judicata effect of the Debtor’s failure

to object to Encompass’s claim barred the Debtor fromdefending against Encompass’s alleged cause

of action in the Kentucky litigation. In response to the state court motion for summary judgment,

the Debtor filed its Motion for Interpretation in the bankruptcy court. The Debtor’s motion states:

Debtor is hereby requesting that the Court interpret the provisions of the Plan and

Disclosure Statement and determine that the Plan and Disclosure Statement provided

sufficient notice to Encompass that the Debtor objected to its claim and that its claim

was not conclusively allowed in this Bankruptcy Proceeding in the amount of

$860,000.00. Specifically, Debtor would request that the Court find under the

circumstances, that Debtor’s objection to Encompass’ claim as noted in the Plan and

Disclosure Statement sufficiently established that Debtor did not intend to waive its

rights to challenge Encompass’ claims in The Miller Act Case or in any other

litigation.

(J.A. at 138-39.)

The bankruptcy court held hearings on the Debtor’s motion on June 22 and 30, 2005. At the

hearings, the bankruptcy court asked the Debtor’s attorneys to articulate the precise relief the Debtor

was seeking through its motion. The Debtor’s special counsel replied: “I think the Court in
1

 After entry of the order denying the Debtor’s Motion for Interpretation, the Debtor filed a

second chapter 11 petition in the United States Bankruptcy Court for the Southern District of Ohio.

On February 27, 2006, the bankruptcy court entered an agreed order granting relief from the

automatic stay in the second case to allow this appeal to proceed.

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Kentucky is looking for a statement by the Bankruptcy Court that the [Debtor’s] failure . . . to object

to Encompass’s claim, either is or is not res judicata in his Court.” (J.A. at 310.) 

On July 1, 2005, the bankruptcy court entered an order denying the Motion for Interpretation

for lack of subject matter jurisdiction. The court described the relief sought by the Debtor as

follows:

In the instant Motion, the Debtor seeks a declaration pursuant to sections 105 and

1142 of the United States Bankruptcy Code (“Code”) that its failure to file a timely

objection to the Encompass claim, under the terms of its confirmed plan, is not

entitled to preclusive effect in the cause of action pending in Kentucky.

(J.A. at 194.) The court noted that, under the terms of the Plan, it only retained jurisdiction over

disputes involving claims “to which any party to these proceedings, including the Debtor,

objects . . . .” (J.A. at 193) (emphasis in original). Because the Debtor had not objected to

Encompass’s claim within the time period specified in the Plan, the court found that resolution of

the issue presented in the Debtor’s motion “exceed[ed] the post confirmation jurisdiction retained

under the terms of the confirmed plan.” (J.A. at 194.) Accordingly, the court concluded that it had

no jurisdiction to provide the relief requested in the Motion for Interpretation. This timely appeal

followed.1

IV. DISCUSSION

A. Subject Matter Jurisdiction.

The jurisdictional framework that applies in bankruptcy cases is frequently confusing and

difficult to apply. See Harstad v. First Am. Bank (In re Harstad), 155 B.R. 500, 505 (Bankr. D.

Minn. 1993) (bankruptcy jurisdiction is “among the most misunderstood and misapplied concepts

in the law”). In the present appeal, the difficulty of the jurisdictional analysis is compounded by the

fact that the Debtor’s Motion for Interpretation sought two distinct types of relief. First, the Debtor

requested that the bankruptcy court determine that its failure to object to Encompass’s claim was not
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entitled to preclusive effect in the Kentucky state court litigation. This is the aspect of the Motion

for Interpretation that was emphasized by Debtor’s counsel at the hearing, and it was understandably

the focus of the bankruptcy court’s order denying the Debtor’s motion. Without question, the court’s

conclusion that it lacked jurisdiction to enter such an order was correct. See Midway Motor Lodge

of Elk Grove v. Innkeepers’ Telemanagment & Equip. Corp., 54 F.3d 406, 409 (7th Cir. 1995) (“In

the law of preclusion . . . the court rendering the first judgment does not get to determine that

judgment’s effect; the second court is entitled to make its own decision . . . .”); Gagliardi v. Am.

Home Prods. Corp., 29 F.Supp.2d 972, 974-75 (E.D. Wis. 1998) (federal court issuing judgment

lacks jurisdiction to determine judgment’s preclusive effect in second proceeding because such a

determination would constitute an impermissible advisory opinion);see generally Transp. & Transit

Assocs. v. Columbus Steel Castings Co. (In re Buckeye Steel Castings Co., Inc.), 306 B.R 186, 188

(B.A.P. 6th Cir. 2004) (“The power of federal courts extends only to cases and controversies, U.S.

Const. art. III, § 2, cl. 1 . . . .;” accordingly, the bankruptcy court lacked jurisdiction to issue an

advisory opinion). 

But the Debtor’s motion also asked the bankruptcy court to interpret its Plan and Disclosure

Statement as preserving its right to challenge Encompass’s claim in the bankruptcy case,

notwithstanding its failure to file a formal objection to the claim. Under the applicable jurisdictional

statute, 28 U.S.C. § 1334, and the terms of the Plan, the bankruptcy court had jurisdiction to make

that determination.

“The source of the bankruptcy court’s jurisdiction is 28 U.S.C. §§ 1334 and 157.” Binder

v. Price Waterhouse & Co. (In re Resorts Int’l, Inc.), 372 F.3d 154, 161 (3d. Cir. 2004) (quoting

United States Brass Corp. v. Travelers Ins. Group, Inc. (In re United States Brass Corp.), 301 F.3d

296, 303 (5th Cir. 2002)); Refrigerant Reclamation Corp. of Am. v. Todack (In re Refrigerant

Reclamation Corp. of Am.), 186 B.R. 78, 80 (Bankr. M.D. Tenn. 1995). Pursuant to 28 U.S.C.

§ 1334, the district courts have jurisdiction over “cases under title 11,” and proceedings “arising

under,” “arising in a case under,” or “related to a case under” title 11. 28 U.S.C. § 1334(a) and (b).

The district courts routinely refer this jurisdiction over bankruptcy cases and proceedings to the

bankruptcy courts. See 28 U.S.C. § 157(a). Because these categories operate conjunctively to form

the scope of bankruptcy jurisdiction, it is not necessary to distinguish among them. Mich.

Employment Sec. Comm’n v. Wolverine Radio Co. (In re Wolverine Radio Co.), 930 F.2d 1132, 1141
2

 Indeed, literal application of the Pacor test would virtually eliminate the bankruptcy courts’

post-confirmation jurisdiction because the debtor’s estate technically ceases to exist once

confirmation occurs. See 11 U.S.C. § 1141(b) (Except as otherwise provided in the plan or order

confirming the plan, confirmation “vests all of the property of the estate in the reorganized debtor.”);

In re Resorts Int’l, Inc., 372 F.3d at 165. Although courts generally agree that “the scope of

bankruptcy court jurisdiction diminishes with plan confirmation,” they have refused to apply the

Pacor test “so literally as to entirely bar post-confirmation bankruptcy jurisdiction.” In re Resorts

Int’l, Inc., 372 F.3d at 164-65 (citing numerous cases upholding the exercise of post-confirmation

jurisdiction and noting that “[p]ost-confirmation jurisdiction is assumed by statute [11 U.S.C.

§ 1142(b)] and rule [Fed. R. Bankr. P. 3020(d)]”).

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(6th Cir. 1991) (citation omitted). Instead, to determine whether a matter is within the bankruptcy

court’s jurisdiction, “it is necessary only to determine whether [the] matter is at least ‘related to’ the

bankruptcy.” Id.

The seminal definition of “related” proceedings under § 1334(b) was articulated by the Third

Circuit Court of Appeals in Pacor, Inc. v. Higgins (In re Pacor), 743 F.2d 984 (3d Cir. 1984). Under

the Pacor definition, a matter is “related to” the underlying bankruptcy case if “the outcome of the

proceeding could conceivably have any effect on the estate being administered in bankruptcy.” Id.

at 994 (emphasis in original). Thus, “[a]n action is related to bankruptcy if the outcome could alter

the debtor’s rights, liabilities, options, or freedom of action (either positively or negatively) and

which in any way impacts upon the handling and administration of the bankrupt estate.” Id. The

Sixth Circuit has adopted and utilized the Pacor definition in numerous decisions. See, e.g., Lindsey

v. O’Brien, Tanski, Tanzer & Young Health Care Providers of Conn. (In re Dow Corning Corp.),

86 F.3d 482, 489 (6th Cir. 1996); Sanders Confectionery Prods., Inc. v. Heller Fin., Inc., 973 F.2d

474, 482 (6th Cir. 1992); In re Wolverine Radio Co., 930 F.2d at 1142; Robinson v. Mich. Consol.

Gas Co., 918 F.2d 579, 584 (6th Cir. 1990).

The Pacor test for determining “related to” jurisdiction was formulated, and is most often

applied, in the pre-confirmation context. When jurisdictional questions arise after confirmation of

a plan of reorganization, courts have acknowledged that the Pacor test, which looks for any

conceivable effect on the bankruptcy estate, becomes difficult to apply and may unduly restrict

bankruptcy court jurisdiction.2 See In re Resorts Int’l, Inc., 372 F.3d at 164-65; Holly’s, Inc. v. City

of Kentwood (In re Holly’s, Inc.), 172 B.R. 545, 558 (Bankr. W.D. Mich. 1994), aff’d, 178 B.R. 711

(W.D. Mich. 1995). Recognizing these problems, other “circuit and bankruptcy courts have
3

 This standard has been expressly adopted by the Ninth Circuit and is generally consistent

with the tests articulated by other courts. See, e.g., In re Pegasus Gold Corp., 394 F.3d at 1195

(“[W]e adopt and apply the Third Circuit’s ‘close nexus’ test for post-confirmation ‘related to’

jurisdiction, because it recognizes the limited nature of post-confirmation jurisdiction but retains a

certain flexibility . . . .”); Eubanks v. Esenjay Petroleum Corp., 152 B.R. 459, 464 (E.D. La. 1993)

(“[T]here is no dispute that a bankruptcy court’s jurisdiction . . . continues post-confirmation ‘to

protect its confirmation decree, to prevent interference with the execution of the plan and to aid

otherwise in its operation.’”) (quoting In re Dilbert’s Quality Supermarkets, Inc., 368 F.2d 922, 924

(2d Cir. 1966)); Trans World Airlines, Inc. v. Karabu Corp., 196 B.R. 711, 714 (Bankr. D. Del.

1996) (the bankruptcy court “has subject matter jurisdiction over any proceeding that conceivably

could affect [the debtor’s] ability to consummate the confirmed plan”) (citation omitted). 

4

 In a decision issued several years ago, the Sixth Circuit Court of Appeals identified a split

of authority regarding the effect of retention of jurisdiction provisions. Gordon Sel-Way, Inc. v.

United States (In re Gordon Sel-Way, Inc.), 270 F.3d 280, 288 (6th Cir. 2001) (“[A]lthough it is true

that some courts have restricted the bankruptcy court’s jurisdiction to the plan of reorganization, this

practice has been explicitly rejected by others.”) (comparing Hosp. & Univ. Prop. Damage

Claimants v. Johns-Manville Corp. (In re Johns-Manville Corp.), 7 F.3d 32, 34 (2d Cir. 1993) (“A

bankruptcy court retains post-confirmation jurisdiction in a chapter 11 proceeding only to the extent

provided in the plan of reorganization.”) with Refrigerant Reclamation Corp. of Am., 186 B.R. at

80 (decisions which define post-confirmation jurisdiction solely by reference to the plan do so

“without proper respect for the broad jurisdictional grant in 28 U.S.C. § 1334(a) & (b)”)). After the

Johns-Manville decision, the vast majority of courts have refused to define the bankruptcy court’s

jurisdiction solely on the basis of retention of jurisdiction provisions in a confirmed plan. See, e.g.,

In re Resorts Int’l, Inc., 372 F.3d at 161; Shiloh Indus., Inc. v. Rouge Indus., Inc. (In re Rouge Indus.,

Inc.), 326 B.R. 55, 60 (Bankr. D. Del. 2005); Diagnostic Int’l, Inc. v. Aerobic Life Prods. Co. (In re

Diagnostic Int’l , Inc.), 257 B.R. 511, 514 (Bankr. D. Ariz. 2000). Given the weight of this wellreasoned authority, this Panel has adopted the analysis set forth by the Third Circuit in Resorts

International. This analysis is not inconsistent with the Sixth Circuit’s decision in Gordon Sel-Way.

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modified or limited the [Pacor] test when the proceeding arises post-confirmation.” See Montana

v. Goldin (In re Pegasus Gold Corp.), 394 F.3d 1189, 1193 (9th Cir. 2005). The Third Circuit

recently reviewed the approaches various courts have employed in analyzing post-confirmation

bankruptcy jurisdiction and concluded that “the essential inquiry appears to be whether there is a

close nexus to the bankruptcy plan or proceeding sufficient to uphold bankruptcy court jurisdiction

over the matter.” In re Resorts Int’l, Inc., 372 F.3d at 166-67. It further suggested that “[m]atters

that affect the interpretation, implementation, consummation, execution, or administration of the

confirmed plan will typically have the requisite close nexus.”3 Id. at 167. 

Retention of jurisdiction provisions, such as those in the Debtor’s Plan, do not alter the

overall scope of the bankruptcy court’s post-confirmation jurisdiction.4 The principles that compel
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this conclusion can be simply stated. First, it is well-established that the bankruptcy court’s subject

matter jurisdiction derives from 28 U.S.C. § 1334, and not from the terms of a confirmed plan. See,

e.g., In re Resorts Int’l, Inc., 372 F.3d at 161; In re Refrigerant Reclamation Corp. of Am., 186 B.R.

at 80; In re Holly’s, Inc., 172 B.R. at 556 (“[I]n determining the limits of its postconfirmation subject

matter jurisdiction, this court must first turn to 28 U.S.C. § 1334, not to the terms of the Debtor’s

confirmed [plan].”). Accordingly, if the bankruptcy court does not have post-confirmation

jurisdiction under 28 U.S.C. § 1334, plan provisions purporting to create such jurisdiction are

“fundamentally irrelevant.” In re Resorts Int’l, Inc., 372 F.3d at 161. This is a logical extension

of the general rule that “neither the bankruptcy court nor the parties can write their own jurisdictional

ticket.” In re Resorts Int’l, Inc., 372 F.3d at 161; see In re Holly’s, Inc., 172 B.R. at 555 (“parties

to an agreement cannot confer subject matter jurisdiction upon a federal court”) (citing Ins. Corp.

of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S. Ct. 2099, 2104 (1982))

(additional citations omitted). Conversely, if jurisdiction exists under the statute, courts may “give

effect to retention of jurisdiction provisions” in a confirmed plan. In re Resorts Int’l, Inc., 372 F.3d

at 161. While the effect of such provisions would not be to deprive the court of jurisdiction

otherwise afforded by 28 U.S.C. § 1334, retention of jurisdiction provisions might condition or limit

the court’s exercise of post-confirmation jurisdiction. 

Applying these principles, we conclude that the bankruptcy court had jurisdiction to

determine whether the Debtor’s Plan and Disclosure Statement preserved the Debtor’s right to

challenge Encompass’s claim in the bankruptcy court without filing a formal objection. It is difficult

to imagine a closer nexus to the Debtor’s bankruptcy case and the confirmed Plan than this direct

request for interpretation and clarification of the Plan’s terms. Indeed, even the most restrictive

views of post-confirmation jurisdiction acknowledge that the bankruptcy courts retain jurisdiction

to interpret and enforce confirmed plans of reorganization. See, e.g., Bank of La. v. Craig’s Stores

of Tex., Inc. (In re Craig’s Stores of Tex., Inc.), 266 F.3d 388, 391 (5th Cir. 2001) (adopting a narrow

view of post-confirmation jurisdiction but stating that a matter is within the bankruptcy court’s postconfirmation jurisdiction if it “bear[s] on the interpretation or execution of the debtor’s plan”). 

The retention of jurisdiction provisions in the Debtor’s Plan do not limit the court’s exercise

of its jurisdiction over the Debtor’s request. In concluding to the contrary, the bankruptcy court

focused on only one portion of the Plan’s retention of jurisdiction provision, i.e., the clause that
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retained its jurisdiction to resolve disputes regarding “any and all Claims herein to which any party

to these proceedings, including the Debtor objects.” However, the Plan also provides that the

bankruptcy court shall retain jurisdiction to “hear and determine controversies concerning and to

adjudicate interests in the property of or transferred by the Debtor” and to “secure execution of the

provisions of this Plan.” The relief sought in the Debtor’s Motion for Interpretation fits within these

categories. 

B. The Bankruptcy Court’s “Implicit” Ruling on the Merits.

The bankruptcy court reasoned that the Plan limited its post-confirmation jurisdiction to

disputes involving claims to which the Debtor had objected. Because the Debtor did not file a

formal objection to Encompass’s claim, the court found that it had no jurisdiction over the Motion

for Interpretation. According to Encompass, the bankruptcy court’s conclusion on the jurisdictional

issue implicitly construed the Plan and Disclosure Statement as requiring a formal objection to

Encompass’s claim. Encompass suggests that “[t]he Court below reached the correct result in its

Order regardless of whether or not the court misspoke in determining the provisions of the Plan

legally limited its jurisdiction.” (Brief of Appellee Encompass Services Corporation, at 16.)

However, the bankruptcy court’s ruling – whether it misspoke or not – was that it lacked

jurisdiction over the Debtor’s motion. It would be improper for this Panel to expand the scope of

its appellate review beyond this jurisdictional determination to address the bankruptcy court’s socalled “implicit” resolution on the merits. See N.J., Dep’t of Envtl. Prot. & Energy v. Long Island

Power Auth., 30 F.3d 403, 414 (3d Cir. 1994) (the “appeal allows us to consider whether the [trial]

court’s dismissal of the claim [for lack of jurisdiction] was proper, not to consider the merits of the

claim”); Burlington N. R.R. Co. v. James, 911 F.2d 1297, 1301-02 (8th Cir. 1990) (limiting the scope

of appellate review to the district court’s jurisdictional determination and declining to address the

court’s “implicit” ruling on the merits).

V. CONCLUSION

To the extent the Debtor’s Motion for Interpretation sought a ruling on the preclusive effect

of the Debtor’s failure to object to Encompass’s claim in the Kentucky state court litigation, the

order denying the motion for lack of jurisdiction is affirmed. To the extent the Motion for
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Interpretation requested that the bankruptcy court interpret the Plan as preserving the Debtor’s right

to challenge Encompass’s claim in the bankruptcy court, the order denying the motion for lack of

jurisdiction is reversed and remanded for a ruling on the merits.