UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GLOVER CONSTRUCTION COMPANY,
INCORPORATED,
Plaintiff-Appellee,

v.                                                             No. 98-1194

HAMPTON ROADS SANITATION
DISTRICT,
Defendant-Appellant.

GLOVER CONSTRUCTION COMPANY,
INCORPORATED,
Plaintiff-Appellant,

v.                                                             No. 98-1266

HAMPTON ROADS SANITATION
DISTRICT,
Defendant-Appellee.

Appeals from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca B. Smith, District Judge.
(CA-97-528-2)

Argued: October 26, 1998

Decided: December 18, 1998

Before ERVIN and HAMILTON, Circuit Judges, and
G. ROSS ANDERSON, JR., United States District Judge for the
District of South Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Gordon Bennett Tayloe, Jr., KELLAM, PICKRELL,
COX & TAYLOE, P.C., Norfolk, Virginia, for Appellant. Neil Sam-
uel Lowenstein, VANDEVENTER BLACK, L.L.P., Norfolk, Vir-
ginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

This is a cross-appeal arising from a dispute over the construction
of a sewer line in the City of Chesapeake. For the reasons stated
below, we affirm.

I.

Glover Construction Company ("Glover") and Hampton Roads
Sanitation District ("HRSD") entered into a contract to construct
approximately 10,000 feet of twenty-four (24) inch sewer line. The
contract required construction in the right of way of Cedar Road, a
major east-west connector in the City of Chesapeake ("City"). A
detour rerouted west-bound Cedar Road traffic to Dominion Boule-
vard. Under the terms of the contract, the City was to control the flow
of traffic via a land disturbance permit, with which Glover was
responsible for complying.

As a part of the contract, a blueprint drawing stated in large capital
letters: "NOTE: THIS PLAN SHOWN ON THIS SHEET IS A GEN-

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ERAL CONCEPTUAL TRAFFIC CONTROL PLAN AND A
DETAILED TRAFFIC CONTROL PLAN, PREPARED BY THE
CONTRACTOR, WILL BE REQUIRED TO BE SUBMITTED TO
AND APPROVED BY THE CITY OF CHESAPEAKE PRIOR TO
BEGINNING CONSTRUCTION" (emphasis added). Relying upon
this provision, the district court ruled Glover assumed the risk that the
City would impose unanticipated traffic control requirements, and
denied Glover's claim for reimbursement for the cost of flagmen,
signs, and other traffic control related costs.

The contract clearly required a uniformed police officer at the
intersection of Cedar and Grassfield Roads while the detour was in
place. Additionally, HRSD required the police officer to be in a police
cruiser. This uniformed police officer, while technically off-duty, still
responded to calls from the City dispatcher.

Glover argued that providing the police officer was a coordination
requirement of the contract, and that the contract was ambiguous as
to which party must pay for the police officer.

HRSD argued that because the contract was not ambiguous, it was
error for the district court to accept parol evidence. HRSD argued that
three provisions of the contract clearly required Glover to bear all
costs. Section 2(a) of the General Conditions of the Contract summa-
rizes those provisions. Section 2(a) stated, "contractor shall provide
and pay for all . . . labor, . . . and other services and facilities of every
nature whatsoever . . . ."

The district judge found the contract was ambiguous as to which
party had to pay for the officer and allowed parol evidence to resolve
the ambiguity. Relying on the testimony of Matt Glover, the district
court ruled HRSD must pay for the uniformed police officer. Glover
testified that contractors do not pay for police officers unless the con-
tract specifically requires it.

The district court denied Glover's request for costs, fees, and pre-
judgment interest. The district court noted that the contract disputes
were legitimate and in its discretion decided not to grant costs, fees,
or prejudgment interest.

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II.

This Court reviews the district court's evidentiary rulings for abuse
of discretion. See United States v. Russell, 971 F.2d 1098, 1104 (4th
Cir. 1992), cert. denied, 506 U.S. 1066 (1993); Lilly v. Common-
wealth of Virginia, 499 S.E.2d 522, 532 (Va. 1998). However,
whether or not a contract is ambiguous under Virginia law is a ques-
tion of law and must be reviewed de novo. Doswell v. VEPCO, 468
S.E.2d 84, 88 (Va. 1996).

"The district court's factual findings are reviewed for clear error."
DesRoches v. Caprio, 156 F.3d 571, 576 (4th Cir. 1998) (citing
United States v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992)).

III.

HRSD appeals the district court's ruling requiring HRSD to bear
the costs of the uniformed police officer while the detour was in
place. HRSD argues that the Virginia Supreme Court's decision in
Doswell supports their position on the use of parol evidence in this
case. Doswell v. VEPCO, 468 S.E.2d 84, 89 (Va. 1996). In Doswell,
the court stated that "parol evidence may not be used to first create
an ambiguity and then to remove it." Id.

Glover argues that the contract is ambiguous under Virginia law,
including the Doswell decision relied upon by HRSD. In Doswell, the
court stated that "[a]n ambiguity exists when language admits of
being understood in more than one way or refers to two or more
things at the same time." Id. at 88; see also Aetna Casualty and Surety
Co. v. Fireguard Corp., 455 S.E.2d 229, 232 (Va. 1995).

The district court found that the contract required a uniformed
police officer to direct traffic, but that the contract was "silent as to
who [was] to pay for that police officer." The district court found as
a matter of fact and law that the three contract provisions relied upon
by HRSD did not apply to the police officer issue. The district court
stated, "The police officer is a specific separate designation on the
contract documents [and that the contract] is silent as to who should
pay [for the police officer]."

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The district court found the testimony of Glover's expert, Matt
Glover, credible. Matt Glover testified that absent a specific contrac-
tual provision to the contrary, the contractor would not pay for the
costs of a uniformed police officer. The district court found that the
testimony of HRSD's witnesses, A. G. Pinkston and Ed Martin, also
supported its resolution of the ambiguity.

We find the district court's legal conclusion that the contract was
ambiguous proper. The fact that the police officer requirement was
set-off from the rest of the contract, as noted by the district court,
made the contract capable of being understood in more than one way.
See Doswell, 468 S.E.2d at 88; Aetna, 455 S.E.2d at 232. We find no
abuse of discretion by the district court in resolving the ambiguity
with parol evidence.

Therefore, we affirm the district court's ruling that HRSD must pay
for the uniformed police officer.

IV.

Glover cross-appeals the district court's ruling denying Glover's
request for reimbursement for the cost of flagmen, signs, and other
traffic control related costs. Glover argues that the requirements
imposed upon them by the City were unreasonable. Glover argues
that, under Vandergrift v. United States, 500 F. Supp. 229, 233 (E.D.
Va. 1978), a party has the right to assume that other parties will do
their duty and act reasonably in doing so. Vandergrift is a negligence
case. Id. The City is not a party in this lawsuit, nor were they a party
to the contract between Glover and HRSD. In its brief, Glover cites
a string of cases without further explanation for the proposition that
approving officials must conform their approvals to industry stan-
dards. We find nothing in these cases requiring HRSD to compensate
Glover for costs associated with a permit issued by the City, particu-
larly since HRSD specifically noted in the contract that Glover was
responsible for obtaining the permit.

The district court found the flagmen issue was separate and distinct
from the uniformed police officer issue. The district court noted the
requirement to provide a uniformed police officer did not require fur-
ther approval from the City, whereas the number of flagmen and other

                    5
traffic control devices were specifically set out in the contract as
items for which the contractor would have to obtain approval. The
district court agreed that the traffic control requirements placed upon
Glover by the City were in many respects unreasonable; however, it
found that Glover assumed this risk when it bid the contract.

We find the district court's ruling on this issue proper as a matter
of law. The contract clearly required Glover to obtain and comply
with the City's permit. HRSD made no representations as to the man-
ner in which the City might act. Therefore, we affirm the district
court's ruling that Glover assumed the risk that the City would
impose unanticipated traffic control requirements.

V.

Glover also cross-appeals the district court's ruling denying Glover
costs, fees, and pre-judgment interest. Glover argues that it was suc-
cessful on its claim for reimbursement for the police officer; there-
fore, an award of costs, fees, and pre-judgment interest is necessary
to make them whole.

Under Virginia law, it is within the discretion of the trial court to
award prejudgment interest. See, e.g., United States v. Dollar Rent A
Car Systems, 712 F.2d 938, 940-41 (4th Cir. 1983); Continental
Insurance Co., v. City of Virginia Beach, 908 F. Supp. 341, 348 (E.D.
Va. 1995); and VA. CODE ANN. § 8.01-382 (Michie 1998);see also
Dairyland Ins. Co. v. Douthat, 449 S.E.2d 799, 801 (Va. 1994). The
district court stated that because the disputes in this case were legiti-
mate, it would not award costs, fees, or prejudgment interest.

We find that the district court's decision not to award prejudgment
interest was not an abuse of discretion. Therefore, we affirm the dis-
trict court's ruling denying Glover costs, fees, and pre-judgment inter-
est.

VI.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

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