dissenting.
I respectfully dissent from the majority opinion for the reason that the issue of bias upon which the jury verdict in the section 1983 claim was bottomed had previously been resolved against the plaintiff in the trial and appeal of the administrative review claim reported in 79 N.C. App. 372, 339 S.E.2d 483, disc. rev. denied (1986). This prior determination of the issue of the bias of the Board became the law of the case and is conclusive on the bias issue raised in the section 1983 claim for damages. Therefore, the section 1983 claim should have been disposed of by summary judgment in favor of the defendants.
Plaintiff, in his complaint, alleged:
9. Plaintiff complains of and excepts to the order of the Board of Education dismissing him as a teacher and makes the following allegations and assignments of error:
a. That the action of the Board of Education in dismissing plaintiff was biased, arbitrary and capricious, lacking substantial basis in fact and being substantially disproportionate to the offense, thus denying to plaintiff both the protections of the Tenure Act and of the Due Process provision of the US and NC Constitutions.
g. That members of the Board of Education were biased on their consideration of the issues, had determined beforehand what action they would take at the hearing, and did not afford plaintiff-petitioner the fair and non-prejudicial hearing to which he was entitled.
The bias issue was clearly presented at the hearing before the Board of Education. The transcript of that hearing discloses:
Mr. FULLER: I would appreciate that. Secondly, I was going to say this anyway, but certainly in light of the fact that there has been some, I want to be perfectly blunt about it and ask the board to the extent of which any of you have been personally involved, have discussed with people who have knowledge and whether any of you have formed any kind of preconceived notions. I don’t mean that in a pejorative sense but just as a matter of being brutally candid. Has anybody on the board either because of the publicity because of what *637you have heard from administration, from friends, neighbors, from anyone else, whether you have any problem at all being completely fair to Mr. Crump? And again I don’t mean fair in the sense of you will try to be fair, but can you honestly say the scales are even now? I follow that a half step by adding particularly when you consider that you have got the individual teacher on the one hand and the chief personnel officer on the other, and yet the constitution requires that he have a fair and impartial tribunal or hearing body. And so I don’t want to offend anybody —
Mr. PITTS: That’s a fair question. I am glad you addressed that right up front because several months ago the board was aware that some form of hearing was coming down the pike. The administration, the attorney, has not ever revealed anything until we received this letter in the mail yesterday hand delivered of any charges or any statements. Now, I can speak for myself. But the attorney has asked all members of the board not to discuss any aspect of anything that they may hear.
If someone calls them on the phone, they are not to respond in any way. I can speak for myself to say that for me at this point in time the slate is clear. And I will ask Mrs. Newton the same question.
Mrs. NEWTON: The same thing. In fact we have not even been given a name whenever we were told a hearing was coming up. And I have not been approached by anybody. And if mention was made of it, I just said I know nothing. And whatever judgment would be made has to be done on what we hear tonight.
Mr. ISENHOUR: The same.
Mr. PITTS: Mrs. Garlitz.
Mrs. GARLITZ: The same. I have had people that made statements to me, and I have not responded in any way. And I did not know until the letter came yesterday what this was about.
Mr. Pitts: Mr. Watts.
Mr. WATTS: Frankly I feel that I can be as objective as anybody on this board. Obviously when a newspaper that *638is published on a county-wide basis comes out and indicates that a teacher is being brought up for charges, I read the article because I’m on the school board and the teacher happens to be in my system.
Other than that, there has been no preliminary information except for this notice we got yesterday afternoon late in the afternoon with the charges. I think I have a fairly good grasp of what we’re here for and hopefully will be able to give every bit of the evidence full weight.
Mr. PITTS: Mrs. Young.
Mrs. YOUNG: I had one call, and I said, “I have no comments.” And I have not said one word anywhere. And when I go, I listen and I vote my convictions.
The decision of the Board of Education contained the following conclusion:
6. All procedural steps required under NC Gen Stat § 115C-325 have been properly followed, and all due process rights required thereunder have been accorded to Eddie Ray Crump.
The defendants in their answer and motion for judgment on the pleadings make the following allegation:
2. The issues raised by the Plaintiff involve alleged bias or prejudgment of the issues involved by the Board and its members.
Upon the hearing in the superior court in November 1984, judgment was entered containing the following:
The court further finds and concludes that the action or [sic] the Board to dismiss Crump was not biased, arbitrary or capricious; was not substantially disproportionate to the offenses proved; but instead was based on substantial evidence viewing the record as a whole.
To this judgment the plaintiff made two assignments of error. The first assignment contained two arguments: that the court erred in concluding that the Board’s findings were supported by substantial evidence and, secondly, that the court erred in concluding that the Board’s order was not biased and capricious.
*639In the plaintiffs brief filed with the Court of Appeals on 3 June 1985, the plaintiff only argued that the decision of the Board of Education to terminate Mr. Crump was not supported by substantial evidence in the light of the whole record. Plaintiff did not argue before the Court of Appeals that the Board of Education was biased and had prejudged his case and that the decision by the Board was biased and arbitrary and capricious.
The opinion of the Court of Appeals, 18 February 1986, only discusses the plaintiffs contention that the Board’s findings and conclusions were not supported by substantial evidence in the whole record. The Court of Appeals made no decision with respect to the plaintiff’s other contention that the Board of Education was biased. This Court denied plaintiff’s petition for discretionary review of the Court of Appeals’ decision.
Plaintiff, by his failure to bring forward in his brief before the Court of Appeals the issue of bias on the part of the Board, has abandoned this issue, and the same has been determined against him by the judgment of the superior court. “Questions raised by assignments of error in appeals from trial tribunals but not then presented and discussed in a party’s brief, are deemed abandoned.” Rule 28(a), Rules of Appellate Procedure; State v. Wilson, 289 N.C. 531, 223 S.E.2d 311 (1976). Thus, it was judicially determined in this proceeding that the Board of Education was not biased and that its decision was not based upon bias nor was it capricious. This became the law of the case in this lawsuit and was binding upon the parties in the trial of the section 1983 issues arising on plaintiff’s complaint. It is to be remembered that plaintiff’s complaint raised both issues — the propriety of his dismissal in the administrative hearing and the action for damages under section 1983. The trial of the issues was separated by the trial judge upon motion of the defendant and no objection or issue to that discretionary decision of the trial court has been raised by the plaintiff. Therefore, the prior decision in the administrative hearing aspect of this case and the appeal therefrom became the law of the case with respect to the question of whether the Board was biased in deciding plaintiff’s claim and whether its decision was based upon bias or was capricious. This prior determination as to the bias issue was binding and conclusive upon the parties and the court in the section 1983 aspect of this case. Transportation, Inc. v. Strick Corp., 286 N.C. 235, 210 S.E.2d 181 (1974); Bank v. Barbee, 260 N.C. 106, 131 S.E.2d 666 (1963); Furniture Co. v. *640Herman, 258 N.C. 733, 129 S.E.2d 471 (1963); Duffer v. Dodge, Inc., 51 N.C. App. 129, 275 S.E.2d 206 (1981); Carpenter v. Carpenter, 25 N.C. App. 235, 212 S.E.2d 911 (1975).
Turning now to the case before us, the Court of Appeals in its opinion apparently overlooked the fact that the plaintiff had brought forward an assignment of error in the previous appeal on this case on the issue of bias on the part of the Board, but abandoned that issue by failing to bring the issue forward and argue it in his brief before the Court of Appeals. I find that the question of whether the issue of bias should have been submitted to the jury is well within the issue raised by the dissent in the Court of Appeals. The whole question before that court was the appropriateness of the submission of that issue and the correctness of the trial judge’s instructions thereto. In any event where justice and right are concerned, this Court has never allowed manifest injustice to prevail based upon some procedural technicality in a trial or appeal. See State v. Black, 308 N.C. 736, 744, 303 S.E.2d 804, 809 (1983) (Martin, J. concurring). It is clear in this case, in my opinion, that the issue of bias has been resolved on the merits against the plaintiff and that this decision is the law of this case and is binding upon this Court in the subsequent appeal of the same issue in plaintiff’s section 1983 claim. Plaintiff had a remedy to review the trial court’s ruling against him in the bias issue. He could have raised it in his first appeal to the Court of Appeals in this case. Plaintiff’s failure to preserve the bias issue cannot thereafter be transformed into a sword to visit manifest injustice upon these defendants in the section 1983 claim. Once the bias issue was fairly and finally decided between these parties, this Court should not allow plaintiff to relitigate the issue in another prong of the identical lawsuit and thereby frustrate the due administration of justice.
Upon this theory, I conclude that it is inappropriate for this Court to decide the substantive legal issue that it has undertaken to do in the majority opinion. I would reverse the decision of the Court of Appeals upon the basis that the bias issue has already been determined on the merits against the plaintiff in this case and that he may not relitigate the same in this section 1983 aspect of his lawsuit.