                    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.




                                 - 4 -
     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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