On Application for Rehearing
PITTMAN, Judge.On application for rehearing, the appel-lee City of Mobile posits, and the dissent agrees, that this court has reversed the trial court’s judgment, in part, on a ground not asserted by the appellant, Hillcrest, Ltd. Suffice it to say that after the appellant’s brief had challenged the correctness of the summary judgment in its entirety, particularly arguing that the condemnation action brought by the state did not have any preclusive effect, the City of Mobile’s appellee’s brief sought to defend the trial court’s summary judgment as it applied to the claimed intrusions of surface water between 1979 and the subsequent construction of the drainage ditch on the basis that those claims had been “abandoned.” Although it is, of course, proper for an appellee to seek affirmance of a summary judgment upon any ground that might appear of record “unless due-process constraints require otherwise” (Wheeler v. George, 39 So.3d 1061, 1088 (Ala.2009)), it is likewise proper for an appellate court to determine whether those arguments are valid (and to decide, when appropriate, that they are not, as in this case). Because the opinion on original deliverance is responsive to the issues presented by the parties, the application for rehearing is overruled.
APPLICATION OVERRULED.
THOMPSON, P.J., and BRYAN and THOMAS, JJ., concur.
MOORE, J., dissents, with writing.