In re: FRANKLIN D. HARRIS, JR.; GWENDOLYN G. HARRIS v. Daniel Cooley; Kaylay Cooley

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0421n.06
No. 19-4081
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
In re: FRANKLIN D. HARRIS, JR.;
GWENDOLYN G. HARRIS,
Debtors.
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FRANKLIN D. HARRIS, JR.; GWENDOLYN G.
HARRIS,
Plaintiffs-Appellants,
v.
DANIEL COOLEY; KAYLAY COOLEY,
Defendants-Appellees.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF
OHIO
O R D E R
Before: COLE, Chief Judge; GUY and BUSH, Circuit Judges.
Franklin D. Harris, Jr., and Gwendolyn G. Harris appeal the district court judgment that
affirmed the bankruptcy court’s order dismissing their adversary proceeding. This case has been
referred to a panel of the court that, upon examination, unanimously agrees that oral argument is
not needed. See Fed. R. App. P. 34(a).
On July 7, 2015, the Harrises filed a voluntary petition for bankruptcy under Chapter 13 of
the Bankruptcy Code. The bankruptcy court issued an automatic stay and a restraining order that
enjoined creditors from commencing a suit against the Harrises or from interfering with the
Harrises’ property. After the bankruptcy court issued the stay, the Harrises’ neighbors, Daniel and

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No. 19-4081
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Kaylay Cooley, filed a lawsuit against them, seeking removal of a privacy fence that allegedly
encroached upon the Cooleys’ property. See Cooley v. Harris, No. 17CIH00071 (Scioto Cty. C.P.
filed May 24, 2017).
While the state court case remained pending, the Harrises filed a complaint in the
bankruptcy court for an adversary proceeding against the Cooleys. At its core, the Harrises’
complaint alleged that the Cooleys (1) violated the bankruptcy court order by filing their complaint
in state court and (2) “continue to pursue to take control, take possession of, and to destroy the
Property of the Bankruptcy Estate”—namely, “privacy fences” and “privacy fence gates”—to
which the Harrises are entitled pursuant to the doctrine of adverse possession. They sought
monetary, injunctive, and declaratory relief.
The bankruptcy court dismissed the Harrises’ adversary proceeding on abstention grounds,
reasoning that it would be more appropriate for the state courts to adjudicate the Harrises’ claims.
See 28 U.S.C. § 1334(c)(1). The Harrises appealed to the district court. The district court adopted
the magistrate judge’s report and recommendation and affirmed the bankruptcy court’s order. The
Harrises now appeal the district court’s judgment.
Courts of Appeals lack jurisdiction to review a decision to abstain from a proceeding under
28 U.S.C. § 1334(c)(1). 28 U.S.C. § 1334(d). The bankruptcy court abstained from hearing the
Harrises’ adversary proceeding under § 1334(c)(1). Therefore, we lack jurisdiction to hear their
appeal.
Accordingly, our Order of July 17, 2020 in this case is hereby vacated, and we DISMISS
the appeal for lack of jurisdiction.
ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk

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