Attorney Fees – Preclusion

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7^th Circuit Court of Appeals

Case Name: Ronald De Coster v. Waushara County Highway Department, et al.

Case No.: 18-2387

Officials: WOOD, Chief Judge, and EASTERBROOK and KANNE, Circuit Judges.

Focus: Attorney Fees – Preclusion

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 and refused to take down the fence. Litigation in state court was settled for a $7,900 payment from the County to DeCoster—who then sought more than $110,000 in a attorneys’ 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 attorney, 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.

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 the merits is the right forum to resolve requests for attorneys’ fees and other expenses of litigation.

Affirmed

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.