In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2387
RONALD DECOSTER,
Plaintiff-Appellant,
v.
WAUSHARA COUNTY HIGHWAY DEPARTMENT and WAUSHARA
COUNTY, WISCONSIN,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 17-C-1623 — William C. Griesbach, Chief Judge.
____________________
ARGUED NOVEMBER 6, 2018 — DECIDED NOVEMBER 15, 2018
____________________
Before WOOD, Chief Judge, and EASTERBROOK and KANNE,
Circuit Judges.
EASTERBROOK, Circuit Judge. When Waushara County set
out to improve a rural highway, a dispute erupted about
who owned a tract of land on which Ronald DeCoster had
erected a fence. The County maintained that it owned the
land or at least had a transportation easement that required
the fence’s removal; DeCoster insisted that the land was his
2 No. 18-2387
and refused to take down the fence. Litigation in state court
was se]led for a $7,900 payment from the County to De-
Coster—who then sought more than $110,000 in a]orneys’
fees and other expenses, relying on Wis. Stat. §32.28. The
state judge awarded about $31,000, ruling that any outlay
after the County offered the $7,900 was unreasonable and
improvident. The court of appeals affirmed. Waushara County
v. DeCoster, 2015 WI App 37 ¶¶18–20.
DeCoster then sued the County in federal court, seeking
an award under 42 U.S.C. §§ 4651–55, part of the Uniform
Relocation Assistance and Real Property Acquisition Act,
which conditions federal grants for highway projects on
states’ providing assurance that they will compensate affect-
ed landowners for reasonable a]orney, appraisal, and engi-
neering fees. The district court ruled that the Act does not
provide a private right of action, 2018 U.S. Dist. LEXIS 90440
(W.D. Wis. May 30, 2018), and DeCoster filed this appeal. We
do not decide that question, because DeCoster had to pre-
sent his claim in the state suit.
The effect of the state court’s decision depends on Wis-
consin’s law. 28 U.S.C. §1738. Wisconsin employs the doc-
trine of claim preclusion (also known as res judicata or mer-
ger and bar) under which all legal theories, pertaining to a
single transaction, that could have been presented in the ini-
tial suit, are barred if not so presented. See, e.g., Wisconsin
Public Service Corp. v. Arby Construction, Inc., 2012 WI 87 ¶34.
In other words, a plaintiff cannot seek a recovery with one
legal theory in one suit, then present a different legal theory
in a second suit. The initial decision extinguishes “all rights
of the plaintiff to remedies against the defendant with re-
spect to all or any part of the transaction, or series of con-
No. 18-2387 3
nected transactions, out of which the action arose.” Restate-
ment (Second) of Judgments §24(1) (1982). It does not ma]er
whether we identify as the “transaction” the (arguable) tak-
ing of DeCoster’s land or his expenses during the litigation.
In either event, the federal suit rests on a transaction that
was before the state court.
That’s not all. Like Wis. Stat. §32.28, the federal Act calls
for the reimbursement of “reasonable” litigation expenses.
See 42 U.S.C. §4654, applied to federally financed state pro-
grams by §4655(a)(2). Wisconsin’s judiciary determined that
an award exceeding $31,561 would not be reasonable. The
resolution of that issue is conclusive whether or not the doc-
trine of claim preclusion applies. See In re Estate of Rille, 2007
WI 36 ¶¶37–38. Whether called issue preclusion or collateral
estoppel, this doctrine applies to issues actually and neces-
sarily decided in the first suit even if the plaintiff advances
new legal theories or demands new remedies. See Restate-
ment (Second) of Judgments §27.
Preclusion is an affirmative defense, see Fed. R. Civ. P.
8(c)(1), and was invoked by the County—though imperfect-
ly. DeCoster asked the federal court to award him more
money than the state judge had been willing to do. The
County invoked preclusion as a defense, to the extent that
DeCoster’s claim rested on state law, and the district judge
agreed. 2018 U.S. Dist. LEXIS 90440 at *10–12. The County’s
reference to preclusion, and the district court’s decision,
were enough to alert DeCoster to the problem in seeking
state-court litigation expenses in a second suit, so we do not
see any obstacle to treating all of his current theories as
barred by the state court’s judgment. The court that decides
4 No. 18-2387
the merits is the right forum to resolve requests for a]or-
neys’ fees and other expenses of litigation.
AFFIRMED