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 DeCoster—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 affected landowners for reasonable a]orney, appraisal, and engineering 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 present his claim in the state suit.

The effect of the state court’s decision depends on Wisconsin’s law. 28 U.S.C. §1738. Wisconsin employs the doctrine of claim preclusion (also known as res judicata or merger and bar) under which all legal theories, pertaining to a 

single transaction, that could have been presented in the initial 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 respect to all or any part of the transaction, or series of con-
No. 18-2387 3

nected transactions, out of which the action arose.” Restatement (Second) of Judgments §24(1) (1982). It does not ma]er 

whether we identify as the “transaction” the (arguable) taking 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 programs 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 doctrine 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 necessarily decided in the first suit even if the plaintiff advances

new legal theories or demands new remedies. See Restatement (Second) of Judgments §27.

Preclusion is an affirmative defense, see Fed. R. Civ. P. 

8(c)(1), and was invoked by the County—though imperfectly. 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]orneys’ fees and other expenses of litigation.

AFFIRMED