ELECTRONI C CITATI ON: 2006 FED App. 0004P (6th Cir.) File Name: 06b0004p.06
BANKRU PTCY APPELLATE P ANEL OF THE SIXTH CIRC UIT
In re : THIC KSTUN BR OTHERS EQUI PMENT CO., INC. , Debtor.

______________________________________ THIC KSTUN BR

OTHERS EQUI PMENT CO., INC. , Appellan t,

v. ENCOMPASS SERVICES CORPORATION ,

Appellee.

______________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 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 Befor e: GRE GG, SC OTT , an d W HIPP LE , Bankr uptcy Appellat e Panel Judg es.

____________________ COUNSEL
ARGUED: Michael D. Bornstein, RICKETT S CO., L.P .A., Picke rington , Ohio, for Appella nt. Charles F. Merz, CHARLES F. MERZ & ASSOCIATES, Louisville, Kentucky , for Appellee. ON BRIE F: Michael D. Bornstein, RICKE TTS CO., L.P.A., Pickerin gton, Ohio, for Appellant. Charles F. Merz, CHARLES F. MERZ & ASSOCIATES, Louisville, Kentucky , for Appellee.-2- ____________________ OPINION

____________________ JAMES D. GREGG , Bankruptcy App ellate Pa nel Judge . Thickstu

n Brothe rs Equipme

nt C o. , Inc. (the “Debtor”) appeals a bankr uptcy court orde

r denying its motion for inte rpretation and clarification

of its co nfirmed c hapter 11 plan (the “Motion for I nterpretation”) for lack of jurisdiction. For the f

ollowing reasons , the cour

t’s jurisd ictional d etermi nation is A

FFI RMED in part, REVERSED in part, and REMANDED.

I. ISSUES ON APPEAL
The issues on ap pe al are whether the bankruptcy court erred in holding: (1) that it lacked subject matter jurisdiction to determine whether the Debtor’s fail

ure to obj ect to a credi

tor’s cla im

was entitled to preclusive effect in pending state cour t litigation, and (2) that it lacked subject matter jurisdiction to interpret

the Debtor’s confirmed chapter 11 plan as prese rving th e Debtor ’s righ

t to objec t to t he cred itor’ s clai m in t he ban krupt cy proceedi ng.

II. JURISDIC TION AND STANDARD OF REVIEW
For purposes of appeal, an order is final if it “ends the litiga tion on the merits and leaves nothing for the court to do but execute the judgment.” Midland Asphalt Corp. v. United States , 489 U.S. 7 94, 798, 109 S. Ct. 1494, 1497 (1989). Thus, the bankruptcy c ourt’s order deny ing th e D ebtor’s m otion for lack of jurisdiction constitutes a “final” order, see , e.g. , IBM Credit Corp. v. Compuhous e 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 app eal s to the Bankruptcy Appellate Panel, and neither party has timely

electe d to have t

his appea l heard by the

district c ourt. 28 U .S.C. §§ 158(b) (6), (c )(1). Ac cording ly, the Panel has jurisd

iction to de cide this a

ppeal.-3-

The bankrup tcy

court’s determination tha

t it lacke d subject

ma t ter jurisdiction over the Debtor’s Motion for I

nterpre tation is reviewed de novo. See Gordon Sel-Way, I nc. v. United States (In re Gordon Sel-Way, Inc .) , 270 F.3d 280, 284 (6th Cir. 2001). “De novo means that the appella te court determines the law independently of the tr ial co urt'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 Mecha nical, Inc. (“ Encompass”) hold clai

ms agai nst each other ste mming fr om alleg ed brea

ches of a constructio n contract at the Rickenba cker A ir National Guard Base near Columbus, Ohio. I n December 1997, Encompa ss initiated

litigati on of its c laims ag ainst the D ebtor an d the Deb tor’s sur

ety in the Circuit Courtof Jefferson County, K e ntucky. The De

btor filed a counterclaim against Encompass in the Kentucky litigation. In Janu

ary 2000, the Debtor a lso filed an

action a gainst E ncompass ’s surety

in the United States District Court for the Southern District of Ohio (the “Miller Act Case”).
OnAugust 8, 2003, the Debtor f iled a volunt ary petition for r elief 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 ag ainst the Debtor.
The Debtor filed

its first amended plan of reorganization (the “Plan” ) on April 8, 2004, and the bankruptcy c ourt entered an order confirming the Plan on June 17, 2004. The Plan requires the Debtor to object to claims within sixty day s after its effective date. The Debt or conce des that it

did notfile an o

bjection to Encompa ss’s clai

m by the dead line spec ified in th e Plan (or at any time thereafter). However, the Debtor asser ts that language in its Plan and Disclosure Statement indicates that Encompass’s claim is disputed and will be litigated in proceedings outside of t he bankrupt cy court. Specifically, the Plan provide s that “[a] party whose Claim was listed as disputed, contingent and/or unliquida

ted in Deb tor’s schedules be fore th e 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 Recover y” and e stablishes a distribution scheme for the-4-

pote ntial Miller Act Recovery . (Plan art I.16-17, I V.3-.4; J.A. at 4-5, 9-11.) The Debtor’ s Disclosure Statemen

t contain s a sligh

tly m o re detailed description of the Debtor’s claim in the Miller Act Case. The

Disclosur

e Stateme nt also ide

ntifies po tential c ounterc laims agains tthe Debtor and states the Debtor’ s belief t

hat any such cla ims are without mer

it.
The Plan further

provides that the bankruptcy court will retain post-confirmation jurisdiction for certain purposes, including to “determine the cla ssification, validity and amount of, or to allow

or disallow, any

and all Claims her

ein to whic

h any party to these proceedings, including the Debtor, objects,” to “hear and determinecontrove rsies co ncernin

g and to adjudica te intere sts in the pr

operty of or trans ferre d by

the Debtor,” and t

o “secur e executi on of the provisions of this Plan .” (Plan a

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

confirma tion matte rs as set f orth in11 U.S.C. §§ 1141 to 1146, as required by the Feder al Rules of

Bankru ptcy Procedu re, L ocal Ba

nkruptcy Rules, or a s set fort

h in the confirmed Plan.” (J.A. at 127.)
OnSeptember 27, 2004, Encompass filed a motion for summary judgment in the Kentucky state court litigation. Encompass’s motion asserted that the res judicata effec t of the Debtor’s failure to object to Encompass’s claim barred the Debtor from defen ding ag ainst Enc ompass’s allege d cause of action in the Kentucky

litigation. In response to the state cour tmotion for summary

judgmen t, the Debtor f

iled its Mot

ion for I nterpre tation in th e bankru

ptcy court. The Debtor’s motion stat es:
Debtor is here by re questing that the Court interpret the provisions of the Plan and Disclosure Statement and determine that the Plan and Disclosure Statement provided sufficient notice to Encompa ss that the D ebtor obj ected to its claim a

nd that its c laim was not c onclusive ly a

llowed in t

his Bank ruptcy Proceed ing in the

amount o f $860,000.00. Specifically, De btor would request that the Court find under the circumst ances, that Debtor’s objection to Encompass’ claim as noted in the Plan and Disclosure Statemen

t suffici ently

established that De

btor did no t intend to waive its rightsto cha llenge Enc ompass’ claims in The Miller Act Case or in any other litigation. (J.A. at 138-39.)
The bankruptcy c ourt held hearings on the Debtor’s motion on June 22 and 30, 2005. At the hearing s, the bankruptcy c ourt asked the Debtor’ s attorne ys t o articu late the precise relief the Debtor

was seeking

through its motion. T

he Debto r’s special coun sel repli ed: “I think the Co

urt in1 After entry of the order deny

ing the Debtor’s Motion

for Interpreta

tion, the Debtor filed a second chapter 11 petition in the United States Bankruptcy

Court for the Southern District of Ohio. OnFebru ary 27, 2006, the bankruptcy c ourt entered an agree d order granting relief from the automatic stay in the sec ond case to allow this appeal to proceed.

-5- 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.)
OnJuly 1, 2005, the bankruptcy c ourt entered an order deny ing the Motion for Interpr etation for lack of subject matter jurisdiction. The court described the re lief sought by the De btor as follows:
Inthe instant Motion, the Debtor seeks a declaration pursua nt to sections 105 and 1142 of the United States Bankruptcy Code (“Co de”) tha

t its failur e to file a timely objectionto the Encompass claim, under the term s of it s confirmed plan, is not en ti tl ed to pr ec lu si ve ef

fe ct in th e c au se of

ac ti on pe nd in g i n K en tu ck y.
(J.A. at 194.) The court noted that, under the terms of the Plan, it only retained jurisdiction over disputes involving

claims “ to which a ny party to these p roceedi

ngs, inclu ding the D ebtor, objects

. . . .” (J.A. at 193) (emphasis in original). Because the Debtor had not objected t o Encompass’s claim with

in 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 . a t 1 94 .) Ac co rd in gl y, the court concluded that it had no jurisdiction to provide the relief requested in the Motion for Interpr etation. This timely appeal followed. 1
IV. DISCU SSION A. Subject Matter Jurisdiction.
The jurisdictional framewo rk th at applies in bankruptcy cases is frequently

confusing and difficul tto 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 misap

plied con cepts inthe law”). In the present appea l, the difficulty of

the jurisdictional analysis is compounded by the fact that the Debtor’s Motion for Interpr etation sought two distinct types of re lief. First, the Debtor requested that the bankruptcy c ourt determine that its failure to object to Encompass’s claim was not-6-

entitled to preclusive effect in the Kentucky state court litigation. This is the aspect of the Motion for Interpretation

that was emphasize d by

Debtor’ s counsel

at the he aring, and it was

understa ndably the focus of the bankruptcy court’s order deny

ing the Debtor’s motion. Without question, the court’s conclusionthat

it lacked jurisdictionto enter such an order was corre ct. See Midway Motor Lodge of Elk Grovev. Innkeepers’ Telemanagment & Equip. Corp. , 54 F.3d 406, 409 (7t h C ir. 199 5) ( “In the law of preclusion . . . the court renderi ng the first judgment does not get to determine that judgment’s effect; the second court is entitled to make i ts own dec ision . . . .” ); Gagliardi v. Am. Home Prods. Corp ., 29 F.Supp.2d 972, 974-75 (E.D. Wis. 1998) (federal court issuing judgment lacks jurisdiction to de termine judgment’s preclusive effec t in second proceeding because suc h a determination

would con stitute an

impermiss ib le adv isory

opinion); see gene

rally Trans

p. & 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 federa l courts extends only

to cases and contr

oversie s, U.S. Const. art. II

I, § 2, cl. 1 . . . .;” accordingly , the bankruptcy c ourt 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 challeng e Encompass’s claim in the bankr uptc y case, notwithstanding its failure to file a f ormal obje ction to the

claim. Un

der the a pplicabl e 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, 16 1 (3d. Cir. 2004) (quoting United States Bra

ss Corp. v. Travelers Ins. Group, Inc. (In re United States Brass Corp.) , 301 F.3d 296, 303 (5th Cir . 2002)); Re frigeran t 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

distric t courts have jurisdiction over “cases under title 11,” and proc eedings “arising under,” “arising in a case under,” or “related to a case under” title 11. 28 U.S.C. § 1334(a) and (b). T he district courts routinely ref er this jurisdiction over bankruptcy cases and proceedings to th e bankruptcy

courts. See 28 U.S.C. § 1 57(a). B ecause these categ ories ope

rate conjunctive ly

to form the scope of bankruptcy jurisdiction, it is not necessary to d istinguish among them. Mich. Employment

Sec. Comm’n v. Wolve

rine Radio Co. (In re Wolverine Radio Co.) , 930 F.2d 1132, 11412 Indeed, literal applica tion of the Pacor

test would

virtually eliminate the bankr uptcy courts’ p os t-confirmation

jurisdiction because the debtor’s estate technically ceases to exist once conf irmation occurs. See 11 U.S.C. § 1141(b) (Except as otherwise provided in the plan or o rde r confirming the plan, confirma tion “ves ts all of the property of the estate in the reorganized debtor.”) ; In re Re sorts Int ’l, Inc. , 372 F.3d at 165. Although courts genera lly agr ee that “the scope of bankruptcy

court jur isdiction d

iminishes w

ith plan c onfirmat

io n,” the y have re fused 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 juris diction a nd noting

that “[p]ost -confir

mation jur

isdiction i s assumed

by s tatute [11 U .S.C. § 1142(b)] and rule [Fed. R. Bankr. P. 3020(d)]”).

-7- (6th Cir. 1991) (citation omitted). Inste ad, to determine whether a matter is within the bankruptcy court’s jurisdict

ion, “it is necessa

ry only to determine whether [the] matter is at least ‘related to’ the bankruptcy.” Id

. The seminal definition of “related” proceeding s under § 1334(b) was articulated by the Third Circuit Court of Appeals in Pacor, I nc. v. Hi ggins (I n re Paco r) , 743 F.2d 984 (3d Cir. 1984). Under the Pacor definition, a matter is “related to” the underly ing bankruptcy

case if “ the outcome of the proceeding

could con ceivabl

y have a ny effec t on the es tate being administered in bankruptcy .” Id

. at 994 (emphasis in

origina l). Thus, “ [a]n action

is relate d to bankr

uptcy if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action (either po si ti ve ly or negatively

) and which in any way

impacts upon the handling and administration of the bankrupt estate.” Id . Th e Sixth Circuit has adopted and utilized the Pacor definition in

numerous decisions. See, e.g., Lindsey

v. O’Brien

, Tanski, Ta nzer &

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

test for determining “related to” jurisdiction was for mulated, and

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

a plan of reorganizat ion, co urts have acknowledged that the Pacor test, which looks for any

co nceivab le ef

fe ct on th e b an kr up tc y estate , becomes difficult to apply a nd may unduly

restrict bankruptcy

court jurisdiction. 2 See In re Resorts Int’l, Inc. , 372 F.3d at 164-65 ; Holly’s, Inc. v. C ity 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) . Reco gn izing th ese problems, other “circuit and bankruptcy courts have3 This standard has been expressly adopted by

the Ninth Circuit and is generally consistent with the tests articulated by othe r courts. See , e.g. , In re Pegasus Gold Corp. , 394 F.3d at 1195 (“[W]e adopt and apply the Thir d Circuit’s ‘close nexus’ test for post-confi rmat ion ‘related to’ jurisdiction, because

it recognizes the limited na ture of p ost-conf

irmation j urisdicti on but ret ains 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 c ourt’s jurisdiction . . . continues pos t-c onfirmat ion ‘to protect its confirmation decree, to prevent interfere nce with the execution of the plan and t o aid otherwis e in its operation.’”) (quoting In re Dilbert’s Quality Supermarkets, Inc. , 368 F.2d 922, 924 (2d Cir. 196 6)); Tra ns World Airlines, Inc. v. Karabu Corp. , 196 B.R. 711, 714 (Bankr. D. Del. 1996) (the bankruptcy

court “has subj ect matte

r jurisdic tion over any procee ding tha

t concei vably could affect [the debtor’s] ability to consummate the confirmed plan”) (citation omitted).

4 In a decision issued

several years ago, th e Sixth Circu it Court of

Appeals identifie d a split of authority reg arding the effect of re tention of jurisdi ction 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 r eorga nization, th

is practice has be en ex plici tly reject ed by othe rs.”) ( compa ring Ho sp . & Uni v. 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 procee ding only to the extent provided in the pla

n of reor ganizat ion.”) withR efriger ant Reclamation Corp. of Am. , 186 B.R. at 80 (decisions which define post-co nfirmation j urisdicti on solely by r efere nce 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 court s have refused to define the bankruptcy court’s jurisdiction solely on the basis of rete ntion 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 L ife Prods. Co. (Inre Diagnostic

Int’l , Inc.) , 257 B.R. 511, 514 (Bankr. D. Ariz. 20 00). Give n the weig

ht of this w ellreasoned authority , this Pane l has adop ted the a naly sis set f

or th by t he Third Circuit in Resorts International

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

. -8- 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 Thir d Circuit recent ly reviewed the approaches var ious courts have employe d in analyzing post-conf i rmation bankruptcy

jurisdiction and concluded that “the essential inq uiry appear s to be whether the re is a close nexus to the bankruptcy plan or proc eeding sufficient to uphold bankruptcy cour t jurisdiction over the matter.” In re Resorts Int’l, Inc. , 372 F.3d at 166-67. It further suggested that “[m]atters that affec t the inter

pretati on , implementation, consummation, execution, or administration of the confirmed plan will typica lly have the re quisite close nexus.” 3 Id . at 167.
Retentio n of jurisdi ction 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-9-

this conclusi on 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 55 6 (“[I ]n determi ning the limits of its

postconfirmation subject matter jurisdiction, this court must first turn to 28 U.S.C. § 1334, not to the ter ms of the Debtor’s confirmed

[plan].”) . A ccordingly , if the bankruptcy court does not have post-confirmation jurisdiction under 28 U.S.C. § 133 4, plan pr ovisions pu

rporting to crea te su ch jur isdiction are “fundamentally

irrelevant.” In re Resorts Int’l, Inc. , 372 F.3d at 161. This is a lo gical extension of the general rule that “neither the bankruptcy c ourt 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 conf er 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). Converse ly, if jurisdi ction exists under the statute, courts may “give effect to reten tion of jur isdiction provisions ” in

a confirmed

plan. In re Resorts Int’l, Inc. , 372 F.3d at 161. Whi le the effect of such provisions would not be to deprive the court of jurisdiction otherwis e afford

ed by 28 U.S.C. § 1 334, rete

ntion of ju

risdiction provisions might c ondition or limit the cour t’s exerci se of post-confirmation jurisdiction. Applying these principl es, we c onclude t hat the ba

nkruptcy court ha d jurisdiction to determine whether the Debtor’s Plan and Disclosure Statement pre served t

he Debto r’s rig

ht to chall enge Encompa ss’s clai m in the bankruptcy

court wit hout filing

a forma l objection. It i s difficu

lt to imagine

a closer nexus to the

Debtor’ s bankrup tcy

case an d the conf

ir med P lan than this direct request for interpre tation and clarif

ication o f the Plan ’s terms. Inde ed, eve n the most r

estricti v e views of pos t-con firma tion juris dicti on ack nowle dge that the bankruptcy c ourts retain jurisdiction to interpret and enforce confirmed pla ns of reorganization. See, e.g., Bank of La. v. Craig’s Stores of Tex., Inc. (In re Craig’s Storesof Tex., Inc. ), 266 F.3d 3 88, 39 1 (5th Cir. 2001) (adop ting a narrow view of post-c onfirmat

ion jurisdi ction but s tating that a matte r is within the bankrup tcy

court’spostconfirmation 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 c oncluding to the contrary , the bankrupt cy c ourt focu sed on on ly one portion of the Plan’s retention of jurisdiction provision, i.e., the clause that-10-

retained its jurisdiction to resolve disputes regarding “any and all Cla

ims herei n to which

any party to these proceedings, including the De btor objects.” However , the Plan a lso provides that the bankrupt cy

court shall retain jurisdiction to “hear and determine controve rsies concerning and t o adjudica te interest s in the property of or transferred by

the Debtor” and to “secure execution of the provisions of this Plan.” The reli ef soug ht in the De

btor’s Mo tion for I

nterpre tation fit s within the se categories.
B. The B ankruptc

y Co urt’s “I mplicit” Ru

ling on th e Merits.
The bankruptcy c ourt reasoned that the P lan limit ed its post- confirma tion jurisd

iction to disputes involving claims to which the Debtor had objected. Bec aus e the Deb tor did not file a formal objectio n to Encomp ass’s cla im, the court found that it had no jurisdiction over the Motion for Interpretation. Accord

ing to Encompass, the bankruptcy c ourt’s conclusion on the jurisdictional iss ue implicitly construed the Plan and Disclosure Statement a s requiring a formal objection t o Encompass’s claim. Encompass suggests that “[t]he Cour t below re ached th e corre ct result in its Order regar dless of w

hether or not the c ourt misspo ke in dete rminin g the pr

ovisi ons of the Plan legally limited its jurisdiction.” (Brief of Appellee Encompass Services Corporation, at 16.) However, the bankruptcy c ourt’s ruling – whether it misspoke or not – was that it l acked jurisdiction over the Debtor’s motion. It would be improper for this Panel to expand the scope of its appella

te revie w bey ond this jur

isdictiona l determi nation to address

the bankruptcy c ourt’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 “appea l allows us

to conside

r whethe r the [tria l] 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 Interpr etation sought a ruling on the preclusive eff ect of the Debtor’s failure to object to Encompass’s claim in the Kent uc ky s tate court litigation, the order deny ing the motion for

lack of j urisdicti on is aff irmed. To

the exte nt the Moti on for-11-

Interpretation

requested that the bankruptcy court interpret the Plan as preserving the Debtor’s rig ht to challen ge Enc ompass’s

claim in th e bankruptcy

court, the order deny

ing the motion for lack of jurisdict ion is rev ersed a

nd reman ded for a ruling on the mer

its.