(concurring in part, dissenting in part) — I agree with the majority opinion that res judicata does not bar an action by Norco Construction, Inc. I dissent from the majority opinion to the extent that I read it as providing delay damages based on a court rule.
Whenever delay damages have been given for supersession of enforcement of a decision, such damages have been premised on a statute or the contractual terms of the supersedeas bond. See Annot., Measure and Amount of Damages Recoverable Under Supersedeas Bond in Action Involving Recovery or Possession of Real Estate, 9 A.L.R. 3d 330 (1966). RAP 8.1(b)(2) allows an amount for delay damages to be included in the amount of the supersedeas bond. I do not believe the court rule itself can authorize recovery of delay damages. Norco does not cite any statute which permits its claim. No supersedeas bond was filed; therefore, no bond terms provide for delay damages. RAP 8.1(b)(2) allows, but does not require, inclusion of an amount for delay damages. It does not authorize recovery for delay damages.
Also, I question Norco's ability to seek delay damages when King County had no notice that delay damages would be sought. I recognize, however, that our court rules currently do not provide a mechanism by which entities not required to post bonds may be apprised that delay damages will be sought. Parties posting supersedeas bonds have *298notice of potential delay damages when an additional amount for delay damages is actually required to be posted.
Dore, J., concurs with Goodloe, J.