Mariner Construction Inc. will get to appeal a jury decision from the South Central District Court that ordered the company to pay the city of Bismarck more than $200,000 for breach of contract.

The North Dakota Supreme Court ruled Monday that the district court misapplied the law during jury instructions in a trial last April.

The city of Bismarck paid more than $1.2 million for road work on about 185 city blocks in 2000. The city alleged in a 2003 lawsuit that the seal coating put on city streets was discovered to be deteriorating within five months of completion of the work.

The contract between Mariner and the city included a one-year warranty against faulty workmanship and materials.

he city contends that Mariner failed to repair the deteriorating chip seal coating within that period.

Mariner said the chip-seal problems were because of oil, or asphalt, that Mariner got from Koch Materials, a Minnesota firm.

Koch Materials says that the asphalt did meet requirements, and the chip seal problems were caused by improper application, according to a court document.

A jury sided with the city in April 2005 and awarded damages of $261,943 plus interest against Mariner for breach of contract.

The district court also denied Mariner's request for another trial.

The state Supreme Court ruled Monday that jurors in district court received incorrect instructions regarding interpretation of the contract, so Mariner should get a new trial.

Chief Justice Gerald Vande Walle wrote in the unanimous decision that the district court held that the contract was not ambiguous, but still instructed the jury on rules for interpreting the contract and that failure to perform all or any part of the contract was a breach of contract. However, the court did not instruct them on what the contract required.

"We conclude the court's instructions did not fairly and adequately advise the jury on the applicable law for a breach of contract claim," Vande Walle wrote. "We therefore conclude the court misapplied the law for resolving Bismarck's breach of contract claim against Mariner and abused its discretion in denying Mariner's motion for a new trial."

Randall Bakke, an attorney for the city of Bismarck, was not available for comment.

Patrick Durick, an attorney for Mariner, said the company was pleased with the Supreme Court ruling. Durick said he does not know when the new trial will be held.

(Reach reporter Jenny Michael at 250-8225 or jenny.michael@;bismarcktribune.com)