Tyger Construction v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
TYGER CONSTRUCTION COMPANY, INCORPORATED
AND PENSACOLA CONSTRUCTION COMPANY,
joint venturers d/b/a TYGER-PENSACOLA
MEMORANDUM OPINION *
v. Record No. 1208-96-1 BY JUDGE JOSEPH E. BAKER
APRIL 15, 1997
COMMONWEALTH OF VIRGINIA,
DEPARTMENT OF HIGHWAYS AND TRANSPORTATION
AND COMPTROLLER OF THE COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Robert W. Curran, Judge
Guilford D. Ware (Martha M. Poindexter;
Crenshaw, Ware & Martin, P.L.C., on briefs),
for appellants.
Judith B. Anderson, Assistant Attorney
General (James S. Gilmore, III, Attorney
General; J. Steven Sheppard, III, Senior
Assistant Attorney General; Kenneth C. Grigg,
Assistant Attorney General, on brief), for
appellees.
Tyger Construction Company, Incorporated and Pensacola
Construction Company, joint venturers d/b/a Tyger-Pensacola
(jointly referred to herein as Tyger) appeal from a judgment of
the Circuit Court of the City of Newport News (trial court) that
denied Tyger's request for compensation claimed to be due
pursuant to a contract with the Commonwealth of Virginia,
Department of Highways and Transportation, and the Comptroller of
the Commonwealth of Virginia (jointly referred to herein as
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
VDOT). Although Tyger alleged several trial court errors, we
need only respond to one. That issue is whether Norfolk Dredging
Company (NDC), a subcontractor of Tyger, is entitled to
compensation for claimed "extra work" allegedly performed on
behalf of Tyger pursuant to Tyger's contract with VDOT. To
recover from VDOT for that alleged "extra work," Tyger must prove
that NDC is entitled to recover from Tyger for "extra work."
On appeal, the dispositive issue is whether the trial
court's finding that Tyger was not entitled to recover
compensation from VDOT for "extra work" alleged to have been
performed by NDC is supported by credible evidence in the record.
We hold that the trial court's finding that Tyger was not
entitled to recover for "extra work" is supported by the record.
As the parties are fully conversant with the facts, we state only
those facts necessary to an understanding of this opinion.
Guided by well established principles, we construe the
evidence in the light most favorable to the party prevailing
below. See Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va.
App. 503, 504, 339 S.E.2d 916, 916 (1986). If there is evidence,
or reasonable inferences can be drawn from the evidence, to
support the trial court's findings, they will not be disturbed on
review, even though there is evidence in the record to support a
contrary finding. See Morris v. Badger Powhatan/Figgie Int'l.,
Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986). In
determining whether credible evidence exists, this Court will not
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retry the facts, reweigh the preponderance of the evidence, or
make its own determination of the credibility of the witnesses.
Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d
32, 35 (1991).
In 1985, Tyger contracted with VDOT to perform work
incidental to the construction of the Interstate 664 bridge
approaches and tunnel between Newport News and Suffolk
(contract). With the approval of VDOT, Tyger entered into a
subcontract with NDC to perform the dredging work in the sites
designated as the North Island and South Island (subcontract)
where the highway would exit the tunnel. The contract provided
that Tyger would excavate unsuitable materials from the channel
bottom as necessary for the construction of the North and South
Islands. VDOT would pay for the dredging work by the cubic yard
of material removed.
VDOT prepared and provided copies of initial tests it had
made that generally described the subsurface materials to be
encountered at the North Island site as muck and soft cohesive
soils. On the copies, VDOT specifically warned that VDOT does
not guarantee that the boring logs provided are indicative of
conditions beyond the limits of the borings. Additionally, of
the nine borings in the North Island site, two showed a "trace of
wood fiber(s)."
In the week prior to turning in its bid, NDC performed its
own borings. Of NDC's seven borings, one indicated a trace of
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wood and another actually hit wood so hard that NDC could not
penetrate it. Instead of investigating in the vicinity of the
hard wood, NDC simply moved over twenty feet and continued its
borings. At trial, NDC's employee responsible for its bid was
asked whether he took subsurface wood obstructions into
consideration in preparing NDC's bid and he responded: "Why
should I bid a different job than any other bidder? Why should I
take myself out of contention?"
While performing the work at the North Island site, NDC
encountered timber pilings, steel cables, rubber tires, and other
subsurface remnants of a VDOT ferry terminal that had once
occupied the site. NDC claimed it spent more than nine
additional days to remove the remnants of the ferry terminal.
However, NDC had estimated a total of three months to complete
the North and South Island dredging and completed the work in
only two months. NDC also excavated a smaller volume of material
from the sites than anticipated.
The contract provided that Tyger was to perform and be paid
for unforeseen work for which there was no price in the contract
whenever it was necessary or desirable in order to complete the
work as contemplated. Tyger asserts that NDC incurred
$464,558.41 of expense in addition to the expenses required and
contemplated by the contract. VDOT refused to pay for the
alleged "extra work," and Tyger brought suit for that sum against
VDOT.
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Based on the evidence presented, the trial court ruled that
the work for which NDC sought additional compensation was not
"extra work," as defined by the contract. The contract
definition of "extra work" sets out three elements that must be
met before compensation for "extra work" is merited: (1) the
work must be unforeseeable; (2) no price must be included for it
in the contract, i.e., it is not already part of the work
described in the contract; (3) the work "is deemed necessary or
desirable in order to complete fully the work as contemplated."
Tyger contends that encountering the debris was
unforeseeable because it was not described in the boring logs
included in the contract. However, disclaimers were included in
the contract which warn the bidder against speculating as to
general conditions based on the limited information given. The
nine one and three-quarter inch borings included in the contract
identified only the nature of the material in the nine cylinders.
The entire area of the North Island covers several thousand
square feet. NDC's own borings, conducted before it submitted a
bid proposal to Tyger, revealed not only traces of wood, but wood
so hard that the boring could not be completed at one location.
Furthermore, Tyger's expert testified that trash and debris,
including tires and logs can be expected along a shoreline or at
the mouth of a harbor. The record is replete with evidence that
the material encountered was foreseeable.
As to the second element of the "extra work" definition, the
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contract contained a price for the work. The unit price for
Section 801 dredging constituted "full compensation for dredging
. . . ." Under the plain language of the contract, the unit
price covered all of the North Island dredging including the
bulky materials. Since Tyger's claim fails the first two
elements of the contract definition of "extra work," the third
element is irrelevant. The record supports the trial court's
finding that the work performed was a foreseeable part of the
contract. The trial court's finding that Tyger was not entitled
to compensation for "extra work" was amply supported by the
evidence and based upon the wording of the contract and Virginia
law. We cannot say that the decision of the trial court was
plainly wrong or without evidence to support it.
Accordingly, we affirm the judgment of the trial court.
Affirmed.
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