author: THOMAS, Judge.

text:
    Simmie Murray KNIGHT v. Cassandra J. KNIGHT.
    2060801.
    Court of Civil Appeals of Alabama.
    April 4, 2008.
    Rehearing Denied June 13, 2008.

      Walden M. Buttram, Gadsden, for appellant.
    S. Sanford Holliday, Roanoke, for appel-lee.
   THOMAS, Judge.

Simmie Murray Knight (“the father”) and Cassandra J. Knight (“the mother”) were previously divorced. They have two minor children, whose physical custody was placed with the mother; the father has visitation rights. In addition, the father paid $389 per month in child support and was required to pay half of the children’s noncovered medical expenses. On August 18, 2006, the mother filed a petition to modify the father’s child-support obligation and visitation rights; she further sought an order that the father pay any noncovered medical expenses “in a timely manner.” The father answered and counterclaimed, seeking a reduction in his child-support obligation. After a trial at which the parties and the children testified, the trial court entered a judgment ordering that the father’s child-support obligation be increased to $617 per month “until the children have completed their formal college education or turn 23 years of age, whichever occurs first,” finding the father in contempt for failing to pay child support in November and December 2006, ordering that the father pay $2,009.16 for his share of the children’s noncovered medical expenses and the November and December child support within 21 days of the entry of the judgment, ordering that the father have no visitation with the older child unless she chose to visit with him, and ordering that the father have only daytime visitation with the younger child on both Saturday and Sunday every other weekend. The father filed a postjudgment motion, which was denied.

The father appeals the modification judgment, raising five issues on appeal. He first argues that the trial court incorrectly calculated his child-support obligation when the evidence of record does not establish his income to be the amount that the trial court used in arriving at the $617 figure; he also complains that the trial court exceeded its authority in ordering that his child-support obligation continue past the age of majority of the children. The father further disputes the amount of the medical expenses the trial court ordered him to pay. The father next argues that the trial court failed to apply the clean-hands doctrine in finding him in contempt but not addressing the mother’s alleged contempt in failing to have the children visit the father for four months. Finally, the father argues that the trial court erred by not including the language required by Ala.Code 1975, § 30-3-166, a part of the Alabama Par-enh-Child Relationship Protection Act, codified at Ala.Code 1975, § 30-3-160 et seq.

We will first address the father’s argument that the trial court erred in ordering that he pay $2,009.16 in past-due noncovered medical expenses and past-due child support. The mother produced a composite exhibit of medical bills and receipts as support for her testimony that the father owed $2,009.16 in past-due non-covered medical expenses and child support. The father did not object to the introduction of this exhibit. The father testified that he had gone to the Department of Human Resources (through which his child support is collected) to pay the medical expenses; he then said that he had discovered that the mother had duplicated some of the expenses. According to the father, on the advice of his attorney, he had chosen not to pay the expenses so that the issue could be addressed by the court. The father produced no evidence and did not testify about which expenses he believed were duplicated on the mother’s composite exhibit; nor did the father testify about the amount of expenses he believed he owed. Thus, the mother’s testimony that he owed $2,009.16 in past-due uncovered medical expenses and child support was uncontradicted and the trial court’s adoption of that figure is not error, especially in light of the fact that the record does not disclose a basis for disputing the mother’s calculations. See, generally, Wallace v. Condo, 656 So.2d 833, 835 (Ala.Civ.App.1994) (affirming a judgment awarding postminority educational support because the mother’s evidence regarding education costs was not contradicted by the father and because the father had failed to present a record containing sufficient evidence to warrant a reversal).

We turn next to the father’s argument that the trial court should not have found him in contempt for violating the child-support provisions of the previous judgment without addressing the mother’s alleged contempt for violating the previous visitation order. Neither the mother nor the father filed a motion requesting that the other be held in contempt. However, the testimony at trial from the mother was that the father had not paid child support in two months. The father testified that the children had not visited him for a four-month period after he had been convicted of driving under the influence. The father never once raised the clean-hands doctrine to the trial court, so we cannot put the trial court in error for failing to apply that doctrine. Robertson v. Robertson, 532 So.2d 1014, 1017 (Ala.Civ.App.1988) (declining to “put the trial court in error on a matter which was not presented to nor decided by that court”). In addition, a parent’s failure to pay child support is not excused by a lack of visitation. See, e.g., Willis v. Levesque, 402 So.2d 1003, 1004 (Ala.Civ.App.1981) (“The waiver of rights of visitation in exchange for release from the duty to pay child support is a legal impossibility.”). Therefore, we affirm the trial court’s contempt finding regarding the father.

The father’s argument that the trial court erred in computing his child-support obligation is based on the premise that the trial court did not have the appropriate evidence before it to determine the father’s income. In fact, the record does not contain a Rule 32, Ala. R. Jud. Admin., income affidavit for either party. We have long reversed child-support awards in such situations. Martin v. Martin, 637 So.2d 901, 902 (Ala.Civ.App.1994). However, we have also determined that, when the record otherwise establishes the parties’ respective incomes, we need not reverse the child-support award for such a technicality. See Mosley v. Mosley, 747 So.2d 894, 898 (Ala.Civ.App.1999) (quoting Dismukes v. Dorsey, 686 So.2d 298, 301 (Ala.Civ.App.1996)); see also Devine v. Devine, 812 So.2d 1278, 1282 (Ala.Civ.App.2001).

In this case, the record evidence is sparse. The father testified that he had earned no income in the five months preceding trial because he had invested in a restaurant and was working to open that restaurant during that period. The mother’s attorney asked the father if his approximate monthly income would have been $2,150, had the father continued singing each weekend as a profession. The father denied that he had ever earned that much money per month, stating instead that, although he could possibly sing three nights per week, he seldom sang more than two nights a week, and that he earned, at most, $200 per night. He also testified that, before the most recent five-month period preceding the trial, he would sing only two weekends per month because he wanted to enjoy his weekend visitation with the children on those other two weekends. Thus, the father said, he had earned approximately $800 per month. The father’s previous income is not apparent from the record, although his previous child-support obligation was $389 a month.

The mother testified that she earned $2,750 as a dental hygienist. The mother pays $400 per month for medical insurance to cover the children. Based on the CS-42 child-support-guidelines form in the record, which reports the father’s income as $2,150, the parties’ combined income of $4,900 results in a $1,003 basic child-support obligation. Once $400 in health-insurance costs are added, the total child-support obligation becomes $1,403. The CS-42 form indicates that the father is responsible for 44% of this amount, or $617.

According to Rule 32(B)(5), Ala. R. Jud. Admin., the trial court, if it determines that a parent is voluntarily unemployed or underemployed, “shall estimate the income that parent would otherwise have and shall impute to that parent that income; the court shall calculate child support based on that parent’s imputed income.” The father’s own testimony supports the trial court’s implicit decision to impute income to the father based on his past earning capability. Despite the lack of child-support income affidavits, we can discern the trial court’s basis for finding the father’s income to be $2,150. Based on the father’s admissions at trial, he would earn $100 or $200 per night for singing in nightclubs and he could sometimes sing three nights a week. However, the father did testify that he had been singing only two nights per week most of the time and that he had chosen to sing only on those weekends that he did not have visitation with his children. If the father earned $200 per night, three nights per week, the father’s income would be $2,400. The $2,150 amount, then, would be less than the amount of income that the father testified he could potentially earn. Because the trial court has the duty of resolving the conflicts in evidence before it, see Butler v. Coonrod, 671 So.2d 750, 751 (Ala.Civ.App.1995), and because the record supports the trial court’s determination that the father’s income could be $2,150, if he were to continue singing regularly, we affirm the trial court’s imputation of that amount of income to the father.

Although we affirm the trial court’s child-support calculation, the trial court’s child-support award cannot be upheld as it is written. There are only two exceptions to the rule that an obligation to pay child support is extinguished upon a child’s majority — postminority support of disabled children as established in Ex parte Brewington, 445 So.2d 294 (Ala.1983), and post-minority educational support awarded pursuant to Ex parte Bayliss, 550 So.2d 986 (Ala.1989), and its progeny. Ex parte Cohen, 763 So.2d 253, 254 (Ala.1999). Although the evidence did establish that the older child was a junior in high school, was academically successful, and had career aspirations that would require a college education, the mother did not seek or present the evidence necessary for an award of postminority educational support. In addition, although the older child does suffer from a serious medical condition, the mother did not request or establish a need for postminority support under the principles established in Ex parte Brewington and its progeny. The younger child suffers from no health problems and is not approaching college age; thus, the mother established no need for either form of postminority support for that child. Therefore, insofar as the trial court’s judgment awarded child support to the children until they completed their “formal education or turned 23 years of age,” the judgment is reversed, and the cause is remanded for the trial court to award child support only during the term of the children’s minority.

Because we are reversing the child-support award, we order the trial court on remand to include in the modification judgment the language required by the Parent-Child Relationship Protection Act, found at § 30-3-166.

The mother requests an attorney fee on appeal; that request is denied.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

THOMPSON, P.J., and PITTMAN and BRYAN, JJ., concur.

MOORE, J., concurs in the result, without writing.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ex parte Simmie Murray KNIGHT. (In re Simmie Murray Knight v. Cassandra J. Knight).
    1071325.
    Supreme Court of Alabama.
    Feb. 13, 2009.
    Walden M. Buttram, Gadsden, for petitioner.
    Submitted on petitioner’s brief only.
   PER CURIAM.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

COBB, C.J., and WOODALL, SMITH, PARKER, and SHAW, JJ., concur.


author: PITTMAN, Judge.

text:
    ATTALLA HEALTH CARE, INC. v. Teresa KIMBLE.
    2061007.
    Court of Civil Appeals of Alabama.
    May 9, 2008.
    Rehearing Denied Dec. 19, 2008.
    Certiorari Denied Feb. 20, 2009 Alabama Supreme Court 1080412.

      Jack W. Torbert of Torbert & Torbert, P.A., Gadsden, for appellant.
    Carl E. Chamblee, Jr., of Chamblee & Malone, LLC, Birmingham, for appellee.
   PITTMAN, Judge.

Attalla Health Care, Inc. (“the employer”), appeals from a judgment of the Eto-wah Circuit Court awarding Teresa Kim-ble (“the employee”) benefits pursuant to the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975. Ex mero mot'ii,, we dismiss the appeal as untimely.

The employee sued the employer in March 2006, seeking an award of workers’ compensation benefits with respect to a neck and back injury that she allegedly had sustained in September 2005. The employer answered the complaint in late March 2006, but it later amended its answer in January 2007 to plead certain “special defenses” to the complaint, including that the employee had refused suitable employment so as to bar her claim for workers’ compensation benefits. After an ore tenus proceeding, the trial court rendered a judgment on April 11, 2007, that, in pertinent part, awarded the employee workers’ compensation benefits on the basis that she had suffered a permanent and total disability; pursuant to Rule 58(c), Ala. R. Civ. P., as amended effective September 19, 2006, that judgment was “entered” on April 16, 2007, the date on which that judgment was entered into the State Judicial Information System.

Under Ala.Code 1975, § 25-5-81(e), any aggrieved party may appeal of right to this court from a judgment entered in a workers’ compensation action “within 42 days” after entry of that judgment. Likewise, Rule 4(a)(1), Ala. R.App. P., provides that “[ejxcept as otherwise provided herein, in all cases in which an appeal is permitted by law as of right to ... a court of appeals, the notice of appeal ... shall be filed ... within 42 days ... of the date of the entry of the judgment ... appealed from.” No notice of appeal in this case was filed on or before May 29, 2007, the first working day after May 28, 2007 (Memorial Day), the 42d day following the entry of the trial court’s judgment. However, under Rule 4(a)(3), Ala. R.App. P., “[t]he filing of a post-judgment motion pursuant to Rules 50, 52, 55 or 59 of the Alabama Rules of Civil Procedure ... shall suspend the running of the time for filing a notice of appeal” until “the date of the entry in the civil docket of an order granting or denying [that] motion.”

On May 9, 2007, within 30 days after the entry of the trial court’s judgment, the employer filed what it styled a “Motion for New Trial Pursuant to Rule 59 and/or Motion for Relief from Judgment Pursuant to Rule 60” in which it stated the following grounds:

“[T]he findings of fact by the Court are contrary to the evidence in this cause.
“[T]he finding by the Court that the [employee] is totally permanently disabled is contrary to the evidence in this case.
“The conclusions of law by the Court are contrary to the law.
“[T]he Court’s finding that the [employee] is permanently and totally disabled and unable to obtain and perform suitable employment is contrary to the facts in this case.
“[T]he Court’s finding that the [employee] is permanently and totally disabled and unable to obtain and perform suitable employment is contrary to the law.
“[T]he Court’s finding that ‘[the employee] and the witnesses who testified in her behalf [were] credible and truthful’ is contrary to the evidence in the case.
“[T]he judgment of the Court is contrary to the provisions of Section 25-5-57(a)(4)d[., Ala.Code 1975,] which provides: [‘]Any employee whose disability results from an injury or impairment and who shall have refused to undergo physical or vocational rehabilitation or to accept reasonable accommodation shall not be deemed permanently and totally disabled.’
“[T]he judgment of the Court is contrary to the provisions of Section 25-5-57(a)(4)d[.] in that [the employee] refused to accept reasonable accommodation provided by her employer pursuant to restrictions set out by her treating physician[.]
“[T]here was no evidence presented to establish the life expectancy of the [employee].
“[T]he [judgment] awarding counsel [for the employee] $31,980.54 [as a] present commuted value of the attorney’s fee is not supported by the evidence in the case.
“[T]he Judgment of the Court is contrary to the provisions of Section 25-5-57(a)(3)e.[, Ala.Code 1975.]
“[T]he Judgment in this cause is contrary to the evidence in this cause in that the [employee] is not entitled to any compensation in that [she] has refused employment suitable to her capacity offered by the [employer], and [she] has refused to perform said job.
“[T]he Judgment of the Court is contrary to the law in this cause in that the [employee] is not entitled to any compensation in that she has refused employment suitable to her capacity offered by the [employer] in this cause, and the [employee] has refused to perform said job.
“[T]he Judgment in this cause in contrary to the evidence in this cause in that the [employee] would only be entitled to a physical impairment rating and not a vocational disability rating pursuant to Section 25 — 5—57[, Ala.Code 1975,] in that the [employer] has offered employment to [the employee], which [she] has unjustifiably refused to accept.
“[T]he Judgment in this cause is contrary to the law in this cause in that the [employee] would only be entitled to a physical impairment rating and not a vocational disability rating pursuant to Section 25-5-57[, Ala.Code 1975,] in that the [employer] has offered employment to [the employee], which [she] has unjustifiably refused to accept.”

The employer’s motion, to the extent that it sought a new trial based upon the grounds alleged, was a proper motion under Rules 59(a) and 59(b), Ala. R. Civ. P. Moreover, to the extent that the employer’s motion can properly be construed as a motion pursuant to Rule 60(b), Ala. R. Civ. P., we noted in Ex parte Gamble, 709 So.2d 67 (Ala.Civ.App.1998), that “Alabama law allows a party to join a request for relief from judgment under Rule 60(b) with a request for a post-judgment remedy,” such as a new trial, although “it frowns upon the practice.” 709 So.2d at 70. Of course, the denial of a Rule 60(b) motion is itself appealable. Williams v. Williams, 910 So.2d 1284, 1286 (Ala.Civ.App.2005).

In response to the employer’s motion, the trial court entered an order on May 10, 2007, setting the employer’s motion for a June 21, 2007, hearing. However, on May 24, 2007, the trial court entered an order stating that the “Motion for New Trial and Motion for Relief of Judgment is hereby denied.” On May 25, 2007, the trial court, on its own motion, entered an order purporting to set aside that court’s May 24, 2007, order denying the employer’s motion, stating that the employer’s motion would “be heard as previously scheduled.” On June 21, 2007, after a hearing, the trial court entered an order purporting to again deny the employer’s motion. The employer filed a notice of appeal on August 2, 2007, 42 days after the entry of the trial court’s June 21, 2007, order.

Based upon the text of Rules 4(a)(1) and 4(a)(3), Ala. R.App. P., the employer’s notice of appeal can be deemed timely filed only if the trial court could properly have set aside its May 24, 2007, order denying the employer’s motion. However, under Alabama law, “[a] trial court does not have jurisdiction to entertain a motion to reconsider the denial of a Rule 60(b) ... motion.” Ex parte Vaughan, 539 So.2d 1060, 1061 (Ala.1989); accord Ex parte Keith, 771 So.2d 1018, 1022 (Ala.1998) (trial court may not “otherwise review” its order denying a Rule 60(b) motion). Similarly, “after a trial court denies a Rule 59 post-judgment motion, the trial court no longer has jurisdiction over the case and the aggrieved party’s only remedy is to appeal.” Ex parte Allstate Life Ins. Co., 741 So.2d 1066, 1071 (Ala.1999).

The facts in Paris v. Estate of Williams, 769 So.2d 321 (Ala.Civ.App.2000), are substantially similar to those in this case. In Paris, a party filed a timely postjudgment motion directly attacking one aspect of a trial court’s judgment; although that motion was denied by the trial court on October 6, 1999, the trial court later purported to “set aside” the order of denial and to set a hearing on the postjudgment motion. We dismissed an appeal taken from the trial court’s judgment because the notice of appeal had not been filed within 42 days of the entry of the trial court’s October 6, 1999, order denying the postjudgment motion, and we did so notwithstanding the trial court’s attempt to “set aside” that denial on its own initiative. 769 So.2d at 323.

In this case, the trial court lacked jurisdiction, after the entry of its May 24, 2007, order denying the employer’s post-judgment motion, to “reconsider” the propriety of that order; the entry of that order, pursuant to Rule 4(a)(3), Ala. R.App. P., triggered the beginning of the 42-day period within which a notice of appeal in the case could properly have been filed. Because the employer did not timely file its notice of appeal on or before July 5, 2007, this court lacks jurisdiction to review the correctness of the trial court’s April 11, 2007, judgment, and we must dismiss the employer’s appeal. See Rule 2(a)(1), Ala. R.App. P. (“An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.”).

APPEAL DISMISSED.

THOMPSON, P.J., and BRYAN, THOMAS, and MOORE, JJ„ concur.

      . Although the employee's action was filed in March 2006, before the promulgation of the amendment to Rule 58(c), Ala. R. Civ. P., that amendment has been held to apply retroactively to all cases pending on the date the amendment was promulgated, including cases '‘pending' in an appellate court. See Ex parte Luker, [Ms. 1051805, August 31, 2007] - So.3d-,-(Ala.2007).

      . When, as here, the last day for performing some act required under the Alabama Rules of Appellate Procedure would fall upon a legal holiday, such as Memorial Day, Rule 26(a), Ala. R.App. P., extends the pertinent legal deadline to "the next day which is not a Saturday, Sunday, or legal holiday.”

      . But see Curry v. Curry, 962 So.2d 261 (Ala.Civ.App.2007) (indicating that a motion invoking Rule 60(b), Ala. R. Civ. P., will be treated under certain circumstances as a motion seeking relief under Rule 59(e), Ala. R. Civ. P.).


author: THOMAS, Judge. PITTMAN,

text:
    Henry Winder WEBB et al. v. CITY OF DEMOPOLIS.
    2061087.
    Court of Civil Appeals of Alabama.
    June 13, 2008.
    Rehearing Denied Aug. 15, 2008.

      Isaac P. Espy and Mark A. Scogin of Espy, Nettles, Scogin & Brantley, P.C., Tuscaloosa, for appellants.
    Richard S. Manley of Manley, Traeger, Perry & Stapp, Demopolis; and Rick A. Howard and April W. McKay of Nix Holts-ford Gilliland Higgins & Hitson, P.C., Montgomery, for appellee.
   THOMAS, Judge.

On September 14, 2006, Henry Winder Webb, Martha Virginia W. Jackson, Caro F.W. Osborne, and Mem Creagh Webb II (hereinafter collectively referred to as “the Webb family”) filed a complaint in the Marengo Circuit Court, seeking declaratory relief with respect to property located in the City of Demopolis (“the City”) that they claim to own by virtue of adverse possession and upon which the City claims a right-of-way. On October 13, 2006, the City, arguing that the doctrine of res judi-cata bars the Webb family’s claim, filed a motion pursuant to Rule 12(b)(6), Ala. R. Civ. P., to dismiss the action for failure to state a claim upon which relief can be granted. The City maintained that a dispute over the same property between the City and John C. Webb, the Webb family’s predecessor in title, was conclusively decided in favor of the City in 1889. The City filed a brief in support of its motion and attached copies of two decisions by the Alabama Supreme Court — City of Demopolis v. Webb, 87 Ala. 659, 6 So. 408 (1889) (“Webb I ”), and Webb v. City of Demopolis, 95 Ala. 116, 13 So. 289 (1892) (“Webb II ”) — as well as copies of maps, pleadings, and other exhibits referenced in the Webb I and Webb II opinions. The circuit court set the motion for a hearing; the hearing was continued several times. On July 17, 2007, the Webb family filed a motion for a preliminary injunction, seeking to prevent the City from proceeding with any development or construction in the area known as the “Arch Street Scenic Walk and Riverfront Development Project.”

On August 8, 2008, the circuit court granted the City’s motion and dismissed the Webb family’s complaint with prejudice. The Webb family appealed to the Alabama Supreme Court. The supreme court transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

Finality of the Judgment

Although neither party has raised an issue concerning this court’s jurisdiction in this case, we must first consider whether this court has jurisdiction over this appeal, because “ ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’ Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)). Section 12-22-2, Ala. Code 1975, provides, in pertinent part, that an appeal will lie to the appropriate appellate court “[f]rom any final judgment of the circuit court.” “A ‘final judgment is a “terminal decision which demonstrates there has been a complete adjudication of all matters in controversy between the litigants.” ’ ” Horton v. Horton, 822 So.2d 431, 433 (Ala.Civ.App.2001) (quoting Dees v. State, 563 So.2d 1059, 1061 (Ala.Civ.App.1990)).

In this case, the Webb family has appealed from the circuit court’s order granting the relief sought in the City’s motion to dismiss their complaint despite the circuit court’s failure to rule on their motion for injunctive relief. For reasons that will be discussed infra, we conclude that, by dismissing the Webb family’s complaint for declaratory relief on the basis that it failed to state a claim upon which relief can be granted, the circuit court implicitly denied the Webb family’s request for injunctive relief. Accordingly, we conclude that the judgment is final and appealable. Cf. Hingle v. Gann, 368 So.2d 22 (Ala.1979) (holding that when judgment established true boundary between the parties but made no mention of cross-claims alleging trespass, both parties’ claims for money damages were deemed denied).

Standard of Review

Rule 12(b), Ala. R. Civ. P., states, in pertinent part:

“If, on a motion asserting the defense numbered (6) to dismiss for failure ... to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment .... ”

Although the City labeled its pleading as a motion to dismiss, it submitted in support of that motion copies of two Alabama Supreme Court decisions as well as copies of the maps and other documentary evidence referenced in ¿those decisions. Because the circuit court was presented with, and did not exclude from its consideration, matters outside the pleadings, the City’s motion to dismiss was converted into a motion for a summary judgment. See Rule 12(b).

The parties appear to believe that the motion to dismiss was not converted, pursuant to Rule 12(b), into a summary-judgment motion, evidently basing that belief upon certain language in Geer Brothers v. Crump, 349 So.2d 577 (Ala.1977). In that case, the trial court dismissed, based on the doctrine of res judicata, a complaint against an insurance agent for failure to provide coverage. The court stated:

“At the outset, the plaintiff argues on this appeal that the trial court had before it only the complaint, the motion to dismiss, the Geer affidavit, and briefs of the parties when the motion to dismiss was ruled upon. The defendant, on the other hand, states that the record in Civil Action No. 6290, which is contained in the record on this appeal, was before the trial court. The record on this appeal is silent on the question of whether either party introduced that record as part of the pleadings or as evidence for or against that motion. However, any such action would have been superfluous, because when a party refers to another proceeding or judgment of a court in his pleading before that court, as was done here, the court on motion to dismiss may take judicial notice of the entire proceeding, or so much of it as is relevant to the question of law presented. Moreover, the parties on appeal have argued the issue of res judicata, and of necessity have brought into consideration the effect of the former judgment. Therefore, we have before us the principal question: Whether the action of th,e trial court was proper, and in our response to that issue we shall treat the trial court’s ruling as having been one upon a motion for summary judgment.

349 So.2d at 579 (final emphasis added; citation omitted). The above-quoted language from Geer Brothers indicates that a trial court may take judicial notice of the proceedings in a former case. It does not stand for the proposition that, when a trial court takes judicial notice of the proceedings in another case, there is no conversion of a motion to dismiss into a summary-judgment motion. See American Trust Corp. v. Champion, 793 So.2d 811, 813 (Ala.Civ.App.2001) (stating that “[bjecause on the issue of res judicata, the trial court considered matters outside the pleadings, ... the motion to dismiss on that ground should be treated as one for a summary judgment, and ... we should review the res judicata issue by the summary-judgment standard”).

Appellate review of a summary judgment is de novo. Ex parte Ballew, 771 So.2d 1040 (Ala.2000). A motion for a summary judgment is to be granted when no genuine issue of matei’ial fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.” Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the movant meets this burden, “the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by ‘substantial evidence.’ ” Lee, 592 So.2d at 1038 (footnote omitted). “[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see § 12-21-12(d), Ala.Code 1975.

Discussion

In 1888, the City filed a bill in the chancery court of Marengo County to abate a public nuisance. The City asserted that John C. Webb had erected a fence across Arch Street, a public thoroughfare that ran north and south along the banks of the Tombigbee River, from the low-water mark to the numbered lots on the east side of the street; several of those lots were owned by Webb. The City also alleged that Webb was collecting wharfage fees from the public at the “lower landing,” a steamboat landing on the Tombigbee River at Arch Street, thereby obstructing the free use of the landing by the public. The City sought an injunction to compel Webb to remove the fence and to restrain him from collecting wharfage fees.

Webb filed a demurrer, asserting, among other things, that the City’s bill failed to show that Arch Street had ever been laid off or opened as a street. The chancery court overruled the demurrer, and Webb appealed to the Alabama Supreme Court; the supreme court affirmed. In order to understand what was at issue in the Webb I and Webb II opinions, we set out a brief review of common-law pleading.

“Common law pleading allotted the defendant a limited number of apparently simple responses to the plaintiffs allegations. The principle behind the limited number of pleadings afforded a common law defendant reflected common law pleading’s emphasis on producing a single issue for resolution. Essentially, three responses to a common law plaintiffs claim existed: (1) a demurrer, which attacked the plaintiffs allegation by asserting that the plaintiff stated ‘no legal claim’; (2) a dilatory plea, which took no position on the facts or law but asserted a ‘legal reason, incidental to the merits, why the court could not hear the case’; and (3) a plea in bar or peremptory plea, which ‘assert(ed) a defense that could bar recovery’ by the plaintiff. The responses had to be taken in a prescribed sequence.
“Within the first category of responsive pleadings — the demurrer — the defendant would state ‘that, even if true, the [plaintiffs] allegations statefd] no legal claim.’ In modern parlance, the demurrer was akin to a Rule 12(b)(6) motion available under the Federal Rules of Civil Procedure. A common law demurrer was required ‘to attack a pleading on its face,’ and a speaking demurrer, relying on matter not within the plaintiffs complaint, was not allowed. A demurrer essentially conceded the factual truth of the plaintiffs allegation, but challenged the legal sufficiency of what was alleged — ‘so what?’ is the generally accepted translation of a demurrer.”

Harry Emmanuel Scozzaro, Jr., Notice Pleading Under the Federal Rides of Civil Procedure Following Swierkiewicz v. Sorema, N.A.: Standing on the Shoidders of Conely and Leatherman, 26 Am. J. Trial Ad. 385, 398-99 (2002) (footnotes omitted).

For present purposes, the only thing at issue in Webb I was the sufficiency of the City’s pleading that Arch Street was a public thoroughfare — i.e., that it had been dedicated to the public use and that its dedication had been accepted by the City. The supreme court disposed of that issue easily, holding that “the bill alleges with sufficient certainty a dedication of the street to the public use, and the acceptance of such dedication by the city authorities.” Webb I, 87 Ala. at 663, 6 So. at 409. The court explained:

“ ‘It may be stated as a general rule’ ... ‘that where the owner of urban property, who has laid it off into lots, with streets, avenues and alleys intersecting the same, sells his lots with reference to a plat in which the same is so laid off; or where, there being a city map on which this land is so laid off, he adopts such map by reference thereto, his acts will amount to a dedication of the designed streets, avenues and alleys to the public.’ ”

87 Ala. at 663-64, 6 So. at 409. The court determined that when the general assembly accepted the city charter incorporating the Town of Demopolis,

“[t]his was an adoption of the plan or map, as part of the charter, with its streets there marked out and dedicated; and the acceptance of the charter operated ipso facto, as an acceptance of such dedication, without further action on the part of the municipal authorities.”

87 Ala. at 664, 6 So. at 409-10. Moreover, the court held, Webb was estopped to deny that Arch Street was a public highway because Webb’s title was derived from conveyances running back to the original dedicators and proprietors and because all the lots, including Webb’s lots, had been described with reference to the original map or plat of the town that laid out the streets. Id. The court stated: “This es-tops [Webb] from denying that Arch street is a public highway, having potential existence, whether actually opened or not.” 87 Ala. at 664, 6 So. at 410 (emphasis added). Quoting from a Rhode Island decision, the court explained:

“ ‘The ground of the estoppel’ ... ‘is, that the easements and servitudes indicated by the plat constitute a part of the consideration for which all the conveyances referring to the plat were made; and therefore no person, while claiming under the conveyances, can be permitted to repudiate them, or to deny that they exist where they are capable of existing.’ ”

87 Ala. at 665, 6 So. at 410 (quoting Providence Steam-Engine Co. v. Providence & Stonington Steamship Co., 12 R.I. 348, 355 (1879)). Further, the court stated:

“It follows, we repeat, from this principle, that it is immaterial whether the street in question had been opened and used all its length through or not. [Webb] purchased [his] lots in full recognition of its existence as a public street or municipal highway, liable to be opened and used as such whenever the growing demands of an increased population and commerce might require it. [The Webbs] are estopped now to deny to it this character, upon the plainest principles of justice and right.”

Id.

After Webb I, the City amended its bill in the chancery court to cure various defects in the pleading that the supreme court had addressed in the Webb I opinion; those defects are not relevant to the issues presented in the instant case. Following the City’s amendment, according to the synopsis preceding the Webb II opinion, Webb “claimed, by way of plea and answer, that the city had relinquished and forfeited her rights by nonuser for more than forty years; and pleaded laches, lapse of time, the statute of limitations, prescription, and equitable estoppel.” 95 Ala. at 117, 13 So. at 289 (first emphasis added).

According to the synopsis, following a trial, the chancery court held (1) that Arch street “was dedicated in the year 1819, by the then owners of the soil, to the free use of the public as a street, and as a landing, and the same should forever remain open to the free use of the public as a street and as a landing,” 95 Ala. at 118,13 So. at 289-90, and (2) that the election of a fence across Arch Street and the collection of wharfage fees at the lower landing in Arch Street were public nuisances that should be abated. Id. Webb again appealed to the Alabama Supreme Court.

In Webb II, the supreme court outlined three questions of “paramount and determining importance,” 95 Ala. at 122, 13 So. at 290, namely:

“First: Did the original proprietors of the land on which the city of Demopolis was subsequently built dedicate to the uses of the public as a street that part of said land which lies between certain numbered lots in the plat or plan of said city and the Tombigbee river, now known as ‘Arch Street?’ Second: Did such dedication, assuming it to have been efficaciously made, extend to the water-line at all stages of the river in such sort as to invest the inhabitants of Demopolis, and the public generally, with the right to pass, in their persons and property, from said street on to the river, and from the river on to the street, without toll, charge, or hindrance? Third: Has this public right, assuming its original existence, been lost, so far as it pertained to that part of said street which has been appropriated by [Webb], by reason of the character, extent and duration of [his] possession, occupancy, and use thereof?”

Id. Tracing the history of the City back to the original land-grant patent from the United States to George S. Gaines, William A. Cobb, and others in 1819, the court answered the first question — whether the land between the edge of the river and numbered lots east of the river on the city plat had been dedicated to the public as Arch Street — in the affirmative. 95 Ala. at 125-26, 13 So. at 292. With respect to the second question — the extent to which Arch Street had been dedicated to the public — the court held that “the whole of Arch Street, extending to [the] low-water mark, was dedicated to the public.” 95 Ala. at 133,13 So. at 295.

With respect to the third question— “whether the easement [in Arch Street] vested in the public has been lost .... through the possession of [the Webbs] and their predecessors in ownership of the lower warehouse property for a great period of time, under an exclusive claim of right,” 95 Ala. at 133, 13 So. at 295 — the court observed that “a great mass of testimony has been taken by each side,” most of which, the court said, was “entirely immaterial to any issue in the cause.” Id. The court explained:

“[W]e will concede, for the [sake of] argument, that the [Webbs] and their predecessors in ownership of the lower warehouse property had, without interruption, since 1844 had actual possession of said street, said lower landing, and the immediate approaches thereto; that this actual possession has all along been exclusive of the whole world; that continuously during all that time they have claimed title to said landing and the approaches, and so much of said street as has been occupied by them, and have claimed in all cases, and exercised at pleasure, the right to charge all persons for the privilege of using said landing as a wharf; and further, that they have greatly improved the landing and approaches thereto — have, if you please, created, the landing, in the sense of building the approaches to it, and providing all the facilities which now exist, or have ever existed for reaching and going on the river at that point; or, in other words, we will concede everything which [the Webbs] claim as to the facts of their relation to this landing.
“But all this will not help them. The law applied to these facts does not enforce any result of benefit to them. No statute of limitations, or principle of repose, obtains here. Neither the statute of limitations, nor the ride which carnes title to adverse possession, nor the doctrines of staleness, equitable estoppel or prescription, can be invoked or applied against the right of the city of Demopo-lis, and of the public, to have this street opened from end to end, a.nd from side to side, from the municipal, line on, the north to the municipal line on the south-east, and from the numbered, lots of the town to lower-water mark of the stream, and devoted to the uses to which it ivas dedicated by the original proprietors in 1810. The city never had any alienable title to, or right in the street. It could never have granted it, or any part of it away, for any purpose whatever. Having no power of direct alienation, it could not pass title indirectly by submitting for the statutory period to private possession, claim and use. Having no power to grant it, no grant can be presumed from the lapse of time, however great, during which it has allowed respondents to deal with a part of it as belonging to them. [The Webbs] being held to know — a rule, the propriety of which is emphasized here by the muni-ments of their title to the warehouse property, which show the fact — that all the space between their lots and the low-water line of the river was in and constituted Arch street, expended money and labor in putting improvements thereon at their own peril, and in recognition of the right of the city to deprive them of all private benefit therefrom by throwing the entire street open to the free use of the public, whenever the municipal authorities deemed it expedient so to do; and hence no element of equitable estoppel against the public enters into their claim.”

95 Ala. at 133-134, 13 So. at 295-96 (emphasis on “created” and “facts” original; other emphasis added). As the foregoing quote from Webb II demonstrates, the issue whether the Webb family and their predecessors in title could have gained title to any portion of Arch Street by adverse possession was previously litigated in the chancery court of Marengo County and conclusively decided by the Alabama Supreme Court 116 years ago. See generally Montgomery County v. City of Montgomery, 195 Ala. 197, 199, 70 So. 642, 643 (1916) (stating that “there may be no adverse possession of public streets, public wharves, public shore lands, or public parks, such as would bar a right of action therefor by the municipality”).

Res Judicata

In Dairyland Insurance Co. v. Jackson, 566 So.2d 723, 725 (Ala.1990), the supreme court stated the elements of the test for applying the doctrine of res judicata:

“The elements of res judicata, or claim preclusion, are (1) a prior judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) with substantial identity of the parties, and (4) with the same cause of action presented in both suits. Hughes v. Allen-stein, 514 So.2d 858, 860 (Ala.1987). If those four elements are present, any claim that was or could have been adjudicated in the prior action is barred from further litigation.”

The first three elements are not at issue in this case. There was clearly a prior judgment on the merits of the City’s 1888 action against John C. Webb, rendered by a court of competent jurisdiction. The Webb family obtained their property by deed from John C. Webb and, as “ ‘successors in title’ to [John C. Webb], privity exists, and the thud [element] is satisfied.” Henderson v. Scott, 418 So.2d 840, 842 (Ala.1982).

The only disputed issue is whether the cause of action presented here is the same as the cause of action presented in Webb I and Webb II. The Webb family asserts that it is not. They base that assertion upon factual arguments, the following two of which are borne out either by the record on appeal in the instant case or by the facts recited in Webb I: (1) the Webb family’s predecessor in title did not acquire the property that is the subject of the instant appeal (the shaded triangle on the map attached as an appendix to this opinion) until 1911, over 20 years after the institution of the lawsuit that culminated in Webb II; and (2) the supreme court’s opinion in Webb I indicates that the subject property (the shaded square on the attached map) was south of Washington Street, 87 Ala. at 664, 6 So. at 410, whereas the property at issue in this appeal is north of Washington Street. The third factual argument upon which the Webb family bases its claim that the cause of action presented in this case is not the same as in Webb I and Webb II is stated in their reply brief as follows:

“In the instant matter, the complaint of the Webb family requests a declaratory judgment to determine the location of Arch Street and to define its dimensions. In contrast, in Webb I and Webb II, the issue before the court was whether Arch Street was a dedicated street open to the public and guaranteed to be free from obstruction.”

The issue in Webb I and Webb II was not “whether Arch Street was a dedicated street open to the public and guaranteed to be free from obstruction.” In fact, our supreme court in Webb I affirmed the chancery court’s overruling of John C. Webb’s demurrer on that very ground, and pointedly stated that “it is immaterial whether the street in question had been opened and used all its length through or not.” 87 Ala. at 665, 6 So. at 410. The court further stated that, because Webb had bought his property with the knowledge that Arch Street was designated on the plat “as a public street, or municipal highway, liable to be opened and used as such whenever the growing demands of an increased population and commerce might require it,” id, Webb was estopped to deny “that Arch street is a public highway, having potential existence, -whether actually opened or not.” 87 Ala. at 664, 6 So. at 410 (emphasis added).

Despite the invalidity of the Webb family’s third factual argument, their first two factual arguments indicate that the cause of action presented here is not the same as the cause of action presented in Webb I and Webb II. In Chapman Nursing Home, Inc. v. McDonald, 985 So.2d 914 (Ala.2007), our supreme court collected cases discussing the same-cause-of-action element of res judicata:

“Discussing the same-cause-of-action element of res judicata, this Court has noted that ‘ “ ‘the principal test for comparing causes of action [for the application of res judicata ] is whether the primary right and duty or wrong are the same in each action.’ ” ’ Old Republic Ins. Co. v. Lanier, 790 So.2d 922, 928 (Ala.2000) (quoting Wesch v. Folsom, 6 F.3d 1465, 1471 (11th Cir.1993)). This Court further stated: ‘ “Res judicata applies not only to the exact legal theori.es advanced in the prior case, but to all-legal theories and claims arising out of the same nucleus of operative facts.”’ 790 So.2d at 928 (quoting Wesch, 6 F.3d at 1471). As a result, two causes of action are the same for res judicata purposes ‘ “when the same evidence is applicable in both actions.”’ Old Republic Ins. Co., 790 So.2d at 928 (quoting Hughes v. Martin, 533 So.2d 188, 191 (Ala.1988)).”

Chapman Nursing Home, 985 So.2d at 921. The cause of action underlying the instant appeal does not arise out of the “same nucleus of operative facts” or the “same evidence” as the cause of action presented in Webb I and Webb II. We, therefore, hold that the doctrine of res judicata is not a bar to the relief sought by the Webb family.

Collateral Estoppel

Although res judicata is not a bar to the relief sought by the Webb family, collateral estoppel — “ Which is a subset of the broader res judicata doctrine,’ ” Lee L. Saad Constr. Co. v. DPF Architects, P.C., 851 So.2d 507, 516 (Ala.2002) (quoting Little v. Pizza Wagon, Inc., 432 So.2d 1269, 1272 (Ala.1983) (Jones, J., concurring specially)) — is a bar. In Dairyland Insurance Co. v. Jackson, 566 So.2d at 726, the supreme court outlined the elements of collateral estoppel:

“The doctrine of collateral estoppel, or issue preclusion, does not require identity of the causes of action involved. The elements of collateral estoppel are: (1) an issue identical to the one litigated in the prior suit; (2) that the issue was actually litigated in the prior suit; (3) that resolution of the issue was necessary to the prior judgment; and (4) the same parties.”

All the elements of collateral estoppel are satisfied. In Webb II, adverse possession of a portion of the thoroughfare known as “Arch Street” was an issue, as it is here; the issue was actually litigated in the chancery court, 95 Ala. at 133, 13 So. at 295; and the issue was necessary to the judgment, see Webb II, 95 Ala. at 122, 13 So. at 290 (stating that the issue was one of “paramount and determining importance”). As we have already stated, the Webb family obtained their property by deed from John C. Webb and, as “ ‘successors in title’ to [John C. Webb], privity exists, and the [same-party element] is satisfied.” Henderson v. Scott, 418 So.2d at 842. See generally Dairyland Ins. Co. v. Jackson, 566 So.2d at 726 (explaining that the “ ‘same parties’ requirement is not strictly enforced if the party raising the defense of collateral estoppel, or the party against whom it is asserted, is in privity with a party to the prior action”).

The City presented a prima facie showing that there was no genuine issue of material fact and that it was entitled to a judgment as a matter of law based on the affirmative defense of collateral estoppel, which is “ ‘a subset of the broader res judicata doctrine,’ ” Lee L. Saad Constr. Co. v. DPF Architects, P.C., 851 So.2d at 516. The Webb family’s request for “a declaratory judgment to determine the location of Arch Street and to define its dimensions” was granted over 100 years ago when our supreme court held that Arch Street occupies “the whole space from [the numbered] lots [east of the Tom-bigbee River] to the low-water mark,” Webb II, 95 Ala. at 130, 13 So. at 294, and when it determined that

“[a]s owners of the[] attingent lots [to the east of the river and Arch Street], ... the [Webbs] by their deed became the grantees and owners of the ultimate fee only to the center of [Arch] street, not to the margin of the river, subject, of course, to the existing easement created by the dedication of the street.”

Webb I, 87 Ala. at 668, 6 So. at 411.

The judgment of the Marengo Circuit Court is affirmed.

AFFIRMED.

THOMPSON, P.J., concurs.

PITTMAN, J., concurs in part and concurs in the result, with writing.

BRYAN and MOORE, JJ., concur in the result, without writings.

PITTMAN,

Judge, concurring in part and concurring in the result.

I concur in the main opinion except insofar as it may indicate that conversion of a motion to dismiss to a summary-judgment motion must occur in every case when a trial court takes judicial notice of other judicial proceedings. See Slepian v. Slepian, 355 So.2d 714, 717 (Ala.Civ.App.1977) (trial court could properly dismiss action after taking judicial notice of another civil action pending in that court when defendant filing motion to dismiss asserted that the plaintiffs claim was pending in the other civil action); and Petersen v. Woodland Homes on Huntsville, Inc., 959 So.2d 135, 141 (Ala.Civ.App.2006) (opinion of three judges that trial court’s consideration of materials filed in parallel case pending in the same court did not mandate treatment of ensuing dismissal as a summary judgment). In this case, however, I believe the main opinion properly reviews the trial court’s judgment as a summary judgment because the trial-court proceedings giving rise to Webb I and Webb II were not pending at the time that the City moved for dismissal. See Briggs v. Woodfin, 395 So.2d 1024, 1026 (Ala.Civ.App.1981) (distinguishing Slepian on that basis).

APPENDIX


author: LYONS,-Justice.

text:
    Ex parte Henry Winder WEBB et al. (In re Henry Winder Webb et al. v. City of Demopolis).
    1071617.
    Supreme Court of Alabama.
    Feb. 13, 2009.
    Isaac P. Espy and Mark A. Seogin of Espy, Nettles, Seogin & Brantley, P.C., Tuscaloosa, for petitioners.
    Rick A. Howard and April W. McKay of Nix Holtsford Gilliland Higgins & Hitson, P.C., Montgomery; and Richard S. Manley of Manley, Traeger, Perry & Stapp, De-mopolis, for respondent.
   LYONS,-Justice.

The petition for the writ of certiorari is quashed.

In quashing the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT QUASHED.

COBB, C.J., and STUART, BOLIN, and MURDOCK, JJ., concur.


author: SHAW, Judge.

text:
    Bobby Joe HARBIN v. STATE of Alabama.
    CR-05-1558.
    Court of Criminal Appeals of Alabama.
    June 27, 2008.
    Rehearing Denied Aug. 22, 2008.
    Certiorari Quashed Feb. 13, 2009 Alabama Supreme Court 1071654.

      Samuel Boyd Bentley, Jasper; and Thomas Lavon Carmichael, Jasper, lor appellant.
    Troy King, atty. gen., and Nancy M. Kirby, asst. atty. gen., for appellee.
   SHAW, Judge.

Bobby Joe Harbin was indicted for murder, a violation of § 13A-6-2, Ala.Code 1975. A jury convicted him of the lesser-included offense of heat-of-passion manslaughter, a violation of § 13A-6-3(a)(2), Ala.Code 1975. He was sentenced to 20 years’ imprisonment.

The evidence adduced at trial indicated the following. In the late evening hours of January 10, 2003, Bobby Joseph Harris was stabbed to death during an altercation outside a gasoline service station in Jasper. The altercation had begun earlier in the evening when Harris and his wife, Sarah, were riding with a friend, Tim Crawford, in Crawford’s Ford pickup truck. As the three were traveling on Highway 78, a Volkswagen automobile tried to run the pickup truck off the road. Harbin was a passenger in the automobile; the automobile was being driven by Harbin’s younger brother, Michael. The two vehicles chased each other for a short time, attempting to run each other off the road, until Crawford realized “there wasn’t any sense” in continuing and ended the chase. (R. 127.) Crawford, Harris, and Sarah then went to a nearby Wal-Mart discount store to look for some of Crawford’s friends. Unable to find those ■friends, the three decided to leave Wal-Mart. As they were leaving the parking lot, they saw Harbin’s older brother, Ricky, who had had an affair with Harris’s wife Sarah, in an Oldsmobile automobile. Ricky and Harris exchanged words, and Ricky told Harris to meet him at a nearby gas station. Crawford, Harris, and Sarah then followed Ricky to the gas station.

When Crawford pulled into the gas station, he saw that Ricky had parked next to the Volkswagen that Harbin and Michael had been in earlier. Crawford said that Ricky was standing by his car, but that he did not see Harbin and Michael. Sarah, however, testified that Harbin, Ricky, and Michael were all standing by them cars ■when she, Harris, and Crawford arrived. Harris got out of the truck and approached Ricky. The two argued and then began exchanging punches. Crawford testified at trial that Ricky threw the first punch; however, Sarah testified that Harris hit Ricky first. According to Crawford, Ricky then hollered and “from nowhere” Harbin and Michael “jumped out” to assist their brother. (R. 134.) Crawford testified that he saw Harbin stab Harris with a knife multiple times; however, Sarah testified that she did not see anyone with a weapon. Just as Crawford was getting out of his truck to help Harris, someone hollered that the police were 'coming, the fight broke up, and the three Harbin brothers left the scene. After the stabbing, Harris walked into the store and collapsed. The paramedics arrived, and Harris was transported to a nearby hospital, where he died from his stab wounds. Testimony indicated that the cause of Harris’s death was exsanguination as a result of three stab wounds — one to the chest, one to the right torso, and one to the right thigh. The partially serrated knife that had been used in the stabbing and that was later found by the police was approximately 7 lk inches long, and the blade was over 3 inches long.

The following day, Harbin and his brothers were arrested. Harbin gave two statements to police. In his first statement, Harbin said that Harris and Ricky had been arguing over Sarah since Sarah first began dating Harris, and that Harris had previously made threats toward him and his brothers. Harbin said that the night of the stabbing, he and Michael first saw Harris in a pickup truck on Highway 78, and that Harris tried to run him and Michael off the road and chased them. Harbin said that he and Michael then went to his cousin’s house to get Ricky because “I got tired of [Harris] messing with us.” (C. 145.) Harbin said that he, Michael, and Ricky then went to the Wal-Mart store, where they again saw Harris, at which point Harris threatened to kill them. Harbin said that he and his brothers ignored the threat and went to a nearby gas station, but that Harris followed them, and Harris and Ricky began fighting. Harbin admitted that he “pulled a knife out” when the fight started, but he claimed that he “wasn’t going to use it” and that he “forgot” that the knife was in his hand when he punched Harris. (C. 145.) With respect to the events leading up to the fight, Harbin’s second statement was essentially the same as his first. However, in his second statement, Harbin stated that he did not pull the knife out when the fight started, as he had said in his first statement, but that he already had the knife out and was using it to clean his fingernails when the fight started. Harbin continued to maintain in his second statement that he forgot that the knife was in his hand when he punched Harris, and he claimed that he was merely trying to help his brother. Harbin did not testify at trial, but he requested and received a jury instruction on self-defense or defense of others.

On appeal, Harbin raises two issues, both relating to the trial court’s jury instructions. Specifically, Harbin argues: (1) that the trial court erred in sua sponte, and over his objection, instructing the jury on heat-of-passion manslaughter as a lesser-included offense of murder, and (2) that the trial court erred in refusing to instruct the jury on criminally negligent homicide as a lesser-included offense of murder. The State initially argues that neither of these issues was properly preserved for review. However, we have reviewed the transcript of the lengthy charge conference, and we believe that both issues were fairly presented to the trial court, that the trial court was aware of Harbin’s arguments, and that the trial court rejected Harbin’s arguments. See, e.g., Ex parte Knight, 453 So.2d 754, 756 (Ala.1984) (“The purpose of the objection rule is to give the trial court an opportunity to correct any alleged error or defect called to its attention before submission of the case to the jury.”). Therefore, we conclude that both issues are properly before this Court for review.

I.

Harbin first contends that the trial court erred in sua sponte instructing the jury, over his objection, on heat-of-passion manslaughter as a lesser-included offense of murder. He argues that he had the right to pursue an “all-or-nothing” approach, to refuse any lesser-included-offense instructions, and to have the case submitted to the jury solely on the charge in the indictment.

Initially, we note that “ ‘[a] trial court has broad discretion in formulating its jury instructions, provided they are an accurate reflection of the law and facts of the case.’ ” Toles v. State, 854 So.2d 1171, 1175 (Ala.Crim.App.2002), quoting Coon v. State, 494 So.2d 184, 186 (Ala.Crim.App.1986). “It has long been the law in Alabama that a trial court has broad discretion in formulating jury instructions, provided those instructions are accurate reflections of the law and facts of the case.” Culpepper v. State, 827 So.2d 883, 885 (Ala.Crim.App.2001). Moreover, § 13A-l-9(a), Ala.Code 1975, provides that “[a] defendant may be convicted of an offense included in an offense charged.” This general rule is limited by § 13A-l-9(b), AIa.Code 1975, which provides that “[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense.” Here, the parties do not dispute, and the record clearly reflects, that heat-of-passion manslaughter is a lesser-included offense of murder as charged in the indictment in this case and that there was evidence presented at the trial supporting a charge on heat-of-passion manslaughter. Thus, the only question presented in this case is whether a trial court may instruct the jury on a lesser-included offense that is supported by the evidence in the face of the defendant’s desire to pursue an all-or-nothing strategy with the jury. We hold that it may.

No Alabama court has squarely addressed whether a defendant has the right to pursue an all-or-nothing strategy and refuse instructions on any lesser-included offenses or whether a trial court may instruct the jury on a lesser-included offense over a defendant’s objection. However, many other jurisdictions have addressed the issue, and the majority of those jurisdictions have held that a trial court does not err in instructing the jury on a lesser-included offense that is supported by the evidence, even over a defendant’s objection. See Blackhurst v. State, 721 P.2d 645 (Alaska Ct.App.1986); Kurck v. State, 235 Ark. 688, 362 S.W.2d 713 (1962); People v. Bradford, 15 Cal.4th 1229, 939 P.2d 259, 65 Cal.Rptr.2d 145 (1997); State v. Johnson, 601 So.2d 219 (Fla.1992); Powell v. State, 270 Ga. 327, 510 S.E.2d 18 (1998); People v. Garcia, 188 Ill.2d 265, 242 Ill. Dec. 295, 721 N.E.2d 574 (1999); Garrett v. State, 756 N.E.2d 523 (Ind.Ct.App.2001); State v. Greer, 439 N.W.2d 198 (Iowa 1989); State v. Cordray, 277 Kan. 43, 82 P.3d 503 (2004); Smith v. Commonwealth, 737 S.W.2d 683 (Ky.1987); Commonwealth v. Berry, 431 Mass. 326, 727 N.E.2d 517 (2000); People v. Chamblis, 395 Mich. 408, 236 N.W.2d 473 (1975), overruled on other grounds, People v. Cornell, 466 Mich. 335, 646 N.W.2d 127 (2002), overruled on yet other grounds, People v. Mendoza, 468 Mich. 527, 664 N.W.2d 685 (2003); State v. Pankratz, 238 Minn. 517, 57 N.W.2d 635 (1953); Harveston v. State, 493 So.2d 365 (Miss.1986); State v. Pribil, 224 Neb. 28, 395 N.W.2d 543 (1986); In re Nathan L., 146 N.H. 614, 776 A.2d 1277 (2001); State v. Powell, 84 N.J. 305, 419 A.2d 406 (1980); State v. Montoya, 116 N.M. 297, 861 P.2d 978 (1993), holding modified on other grounds, State v. Gomez, 122 N.M. 777, 932 P.2d 1 (1997); State v. Schmidt, 100 Ohio App.3d 167, 652 N.E.2d 254 (1995); McHam v. State, 126 P.3d 662 (Okla.Crim.App.2005); State v. Keaton, 15 Or.App. 477, 516 P.2d 490 (1974); State v. Cook, 319 N.W.2d 809 (S.D.1982); State v. Bolden, 979 S.W.2d 587 (Tenn.1998); McQueen v. State, 984 S.W.2d 712 (Tex.Ct.App.1998); State v. Howell, 649 P.2d 91 (Utah 1982); and In re Trombly, 160 Vt. 215, 627 A.2d 855 (1993).

In Commonwealth v. Woodward, 427 Mass. 659, 694 N.E.2d 1277 (1998), the Massachusetts Supreme Court held that the trial court erred in acceding to defense counsel’s wishes that the jury not be instructed on involuntary manslaughter as a lesser-included offense of murder when the prosecution had requested such an instruction. The Court explained:

“The Commonwealth presented evidence that the cause of Matthew’s [an eight-month-old child] death was severe head trauma inflicted on February 4, 1997, while he was in the sole custody of Woodward. The Commonwealth sought jury instructions on murder in the first degree on a theory of extreme atrocity or cruelty, murder in the second degree, and on the lesser included offense of involuntary manslaughter. Woodward objected to the last request, and asked that the jury be limited to considering the offense of murder. The judge acceded to her request. This was error. We have stated repeatedly that, ‘[w]hen the evidence permits a finding of a lesser included offense, a judge must, upon request, instruct the jury on the possibility of conviction of the lesser crime.’ Commonwealth v. Gould, 413 Mass. 707, 715, 603 N.E.2d 201 (1992). See Commonwealth v. Hobbs, 385 Mass. 863, 871, 434 N.E.2d 633 (1982); Commonwealth v. Richmond, 379 Mass. 557, 562, 399 N.E.2d 1069 (1980); Commonwealth v. Campbell, 352 Mass. 387, 392, 226 N.E.2d 211 (1967). We have never limited this rule to requests made by the defendant, nor have we ever held that the Commonwealth is not entitled, evidence permitting, to such an instruction on request/
“This issue has arisen on appeal most often in cases in which the defendant requested an instruction on a lesser included offense. In the only case of which we are aware concerning the Commonwealth’s request for a lesser included instruction, which presented the converse of the question here, we affirmed a judge’s allowance of the request over the defendant’s objection. Commonwealth v. Thayer, 418 Mass. 130, 132-133, 634 N.E.2d 576 (1994). See Commonwealth v. Matos, 36 Mass. App.Ct. 958, 962, 634 N.E.2d 138 (1994) (defendant does not have absolute right to make tactical decisions that determine which theories of criminal liability are submitted to jury); Commonwealth v. Vasquez, 27 Mass.App.Ct. 655, 660, 542 N.E.2d 296 (1989) (test to determine if instruction on lesser included offense required does not depend on whether defendant or Commonwealth objects, but rather whether evidence supports such instruction). Here, a disputed element — malice—distinguishes murder, the greater offense, from manslaughter, the lesser offense, and an instruction should have been given. Consideration of lower court denials of prosecutors’ requests for instructions on lesser included offenses would not reach us except in the unlikely procedural circumstances of this case, because the Commonwealth has no reason to appeal from a conviction, and is barred by double jeopardy principles from appealing from an acquittal. See Commonwealth v. Therrien, 383 Mass. 529, 532, 420 N.E.2d 897 (1981). Authorities elsewhere hold overwhelmingly that the prosecution has a right to jury instructions on lesser included offenses, on request, if the evidence so warrants, in spite of a defendant’s objection. As far as we are aware, no jurisdiction that has considered the issue has allowed a defendant to veto a lesser included offense instruction properly requested by the prosecution.
“Our conclusion that the Commonwealth was entitled to a manslaughter instruction is fortified by the policy favoring instructing juries on lesser included offenses. The doctrine .serves the public purpose of allowing the jury to convict of the offense established by the evidence, rather than forcing them to choose between convicting the defendant of an offense not fully established by the evidence or acquitting, even though the defendant is guilty of some offense. Commonwealth v. Walker, 426 Mass. 301, 305, 687 N.E.2d 1246 (1997). Here, it was peculiarly inappropriate for the judge to refuse to charge the jury on manslaughter when, as revealed by his subsequent order reducing the jury’s verdict, in his view the evidence was not consonant with a conviction of murder. The jury, in reaching their verdict, surely must have concluded that the Commonwealth had proved beyond a reasonable doubt the element of causation— that Woodward’s acts caused Matthew’s fatal injury. By refusing to accede to the Commonwealth’s request for a manslaughter instruction, the judge imper-missibly prevented the jury from considering a lesser degree of culpability for Woodward.”

427 Mass, at 662-665, 694 N.E.2d at 1282-84 (footnotes omitted). Subsequently, in Commonwealth v. Berry, supra, the Massachusetts Supreme Court expanded its holding in Commonwealth v. Woodward, and held that a trial court may also sua sponte instruct the jury on a lesser-included offense over the objection of the defendant. The Court explained:

“Concerning the specific circumstances on which a lesser included offense instruction is to be given, our cases have stated repeatedly that, ‘[w]hen the evidence permits a finding of a lesser included offense, a judge must, upon request, instruct the jury on the possibility of conviction of the lesser crime’ (emphasis supplied [in Berry ]). Commonwealth v. Woodward, 427 Mass. 659, 662-663, 694 N.E.2d 1277 (1998), quoting Commonwealth v. Gould, 413 Mass. 707, 715, 603 N.E.2d 201 (1992). See Commonwealth v. Pitts, [403 Mass.665,] 667 n. 2, 532 N.E.2d 34 [ (1989) ], quoting Commonwealth v. Walden, [380 Mass. 724,] 726, 405 N.E.2d 939 [ (1980) ] (‘we note that the fact that a defendant denies committing the homicide “does not relieve the judge from giving a manslaughter charge, on request, where the evidence would warrant conviction of that lesser crime” ’). ‘We have never limited this rule to requests made by the defendant, nor have we ever held that the Commonwealth is not entitled, evidence permitting, to such an instruction on request.’ Commonwealth v. Woodward, supra at 663, 694 N.E.2d 1277.
“The present case presents a slightly different factual situation: the judge, concerned that the evidence might warrant a manslaughter instruction, thoughtfully raised the issue sua sponte, despite the fact that neither side requested such an instruction. The Commonwealth then agreed to the instruction,[] but the defendant objected. Although Commonwealth v. Roberts, 407 Mass. 731, 737, 555 N.E.2d 588 (1990), appears to hold that in certain circumstances a defendant may employ an ‘all-or-nothing’ strategy, we have made it clear since that case that the defendant cannot control this decision where the evidence would warrant a finding of guilty of the lesser included offense and the Commonwealth requests such an instruction. See Commonwealth v. Woodward, supra at 663 n. 7, 694 N.E.2d 1277. In the Woodward case, we stated that ‘[t]he Roberts case, supra, does not stand for the proposition ... that the defendant has an unqualified right to elect, evidence permitting, whether or not the jury receive a lesser included instruction’ (emphasis supplied [in Berry ]), and we specifically ‘disavowed] dictum that may suggest that the judge must honor, in the face of the Commonwealth’s objection, the defendant’s choice not to have a manslaughter instruction.’ Id. We have also said that the defendant does not have an absolute right to make tactical decisions that determine which theories of criminal liability are submitted to the jury and have affirmed a judge’s allowance of the Commonwealth’s request for a lesser included offense instruction over the defendants’ objection. See Commonwealth v. Thayer, 418 Mass. 130, 132-133, 634 N.E.2d 576 (1994).
“The necessary corollary of this is that when the evidence would warrant a conviction of the lesser included offense and the element differentiating the offenses is in dispute, the judge may give the instruction despite objection by both the Commonwealth and the defendant. If the defendant alone cannot control which theories of criminal liability are submitted to the jury, both sides should not be able to do so. If, however, in these circumstances (either no request at all or objection by both sides) the judge chooses to give such an instruction, such action will not be -reversed on appeal, absent a substantial risk of a miscarriage of justice. On the facts of this case, the judge was entitled to raise with counsel whether to give a manslaughter instruction, in view of her determination that the evidence warranted such an instruction, but she was not required to do so.”

431 Mass, at 337-38, 727 N.E.2d at 526-27 (footnotes omitted).

In State v. Powell, supra, the New Jersey Supreme Court opined:

“[W]e question whether it is proper for the trial court to omit such a charge [on a lesser-ineluded offense] simply because defense counsel specifically requests that it not be given, even where the prosecution concurs in that request. If that agreement between counsel reflects their belief that there is insufficient evidence to warrant such a charge, that is one thing: certainly a trial court would seriously consider counsel’s concurrence as indicating a high degree of probability that there is indeed insufficient evidence. Where, however, counsel’s concurrence that no such charge be given, in the face of obvious record support for such charge, is based on their conclusions as to optimum strategy (defense counsel believing that the charge will impede what is believed to be a substantial chance of acquittal, the prosecution that it will impede what it believes to be a substantial chance of conviction of first or second degree murder) the manslaughter charge should be given to the jury. There is a third party involved (represented by the jury): the State itself, on behalf of its citizens. Them interest is paramount, even more important than preserving the ‘purity’ of the adversary system, especially when there seems to be no justifiable end served by that system in this particular situation. Very simply, where the facts on the record would justify a conviction of a certain charge, the people of this State are entitled to have that charge rendered to the jury, and no one’s strategy, or assumed (even real) advantage can take precedence over that public interest. It matters not that the defendant’s counsel may be correct in the belief that acquittal is more likely without such charge, or that defendant himself is willing to take that chance; nor does it matter that the prosecutor is content to forego the manslaughter instruction in the hope that a conviction of murder will result. The judge is more than a referee between contestants. He is the law’s representative, and it is his duty to see that the will of the law is done. The real function of the adversary system is to help him fulfill that duty.”

84 N.J. at 318-19, 419 A.2d at 413-14.

Further, in State v. Howell, supra, the Utah Supreme Court explained:

“Defendant contends that the trial court erred in instructing, over his objection, that the jury could return verdicts on the lesser included offenses of manslaughter and attempted manslaughter. The argument is that the State must stand on the formal charges alleged in the information and that a defendant may only be tried on those crimes formally charged if the defendant wishes to hold the State to those charges — in this case first and second degree murder and attempted murder. Believing that he had a valid defense of self-defense to those charges, defendant objected to the giving of the lesser included offense instructions.
“Usually issues concerning lesser included offenses arise by way of a defendant’s contention that the trial court erred in not giving him the benefit of an instruction on a crime claimed to be a lesser included offense. However, on occasion, an accused may choose not to request instructions on lesser included offenses as a matter of trial strategy, usually in the belief that he can defeat the greater charge, but might not be able to defeat a lesser included offense. See State v. Mora, Utah, 558 P.2d 1335 (1977); State v. Gellatly, 22 Utah 2d 149, 449 P.2d 993 (1969). Indeed, a defendant for that reason may even oppose instructions on lesser included offenses, as in the case here, in the hope of escaping all criminal liability.
“If one were to view a trial as a strictly adversarial contest or combat between two parties, one could argue that a defendant should have the right to win or lose solely on the basis of what the prosecution has charged. However, a criminal trial is much more than just a contest between the State and an individual which is determined by strategies appropriate to determining the outcome of a game. A primary purpose of a criminal trial is the vindication of the laws of a civilized society against those who are guilty of transgressing those laws. The process, however, must be based on procedures which are consonant with fairness both to the defendant and the State.
“It is at best hazardous to predict just what the evidence at a trial will be. Every judge and every lawyer knows that witnesses’ testimony may, for a variety of reasons, be different than expected, or partially or even wholly undermined on cross-examination, or indeed not admitted at all for a variety of reasons.
“However, when evidence of a defendant’s criminal conduct has been placed before a court of justice, even though that conduct has not been specifically charged, it would be a mockery of our criminal laws for a court to ignore a proved crime and acquit on the charged crime, when the defendant is not prejudiced in presenting a full and complete defense to the proved crime. Thus, if the state fails to make out every single element of the crime charged, but nonetheless proves a lesser included crime, every element of which defendant necessarily had to defend against anyway, it would be a travesty to acquit the defendant because the lesser included crime was not charged in the information.
“We are not unmindful that there is a direct and significant relationship between the crimes the State charges and the ability of the defendant to defend himself. Due process requires that a defendant have adequate notice of the charges against him and sufficient time to prepare his defenses. Necessarily, the defendant gears his defenses to the allegations of the information and the bill of particulars. It is obviously impossible to defend adequately against charges which are not specified until the moment of instructing the jury, unless the charge is a lesser and clearly included offense. Under the Utah definition of a lesser included offense, there can be no unfairness to the defendant in giving a lesser included offense instruction because of lack of notice or preparation since no element may be included in the lesser offense that is not included in the greater offense.[ ] State v. Elliott, Utah, 641 P.2d 122 (1982); State v. Williams, Utah, 636 P.2d 1092 (1981).
“This Court has never before directly ruled on the question of whether a trial court may, over objection, instruct on lesser included offenses. In State v. Mora, Utah, 558 P.2d 1335, 1337 (1977), we stated: ‘[fit is undoubtedly within the prerogative of the trial court to submit included offenses if he thinks that the interest of justice so require.’ See also State v. Mitchell, 3 Utah 2d 70, 278 P.2d 618 (1955). Clearly the State has no legitimate interest in obtaining a conviction for a crime greater than that warranted by the evidence, but neither does the defendant have a right to an acquittal when the evidence, although not sufficient to establish the greater crime, is sufficient to establish a lesser included offense. The validity of this proposition has been affirmed by a number of states. E.g., People v. Taylor, 36 Ill.2d 483, 224 N.E.2d 266 (1967); Rayner v. State, Fla., 273 So.2d 759 (1973); State v. Pan- kratz, 238 Minn. 517, 57 N.W.2d 635 (1953).
“Accordingly, we hold that a trial court may properly give a lesser included offense instruction, even over a defendant’s objection, if there is clearly no risk that the defendant will be prejudiced by lack of notice and preparation so as to deprive him of a full and fair opportunity to defend himself.”

649 P.2d at 94-95 (footnote omitted).

We agree with the reasoning of these courts. The purpose of a criminal trial is to seek the truth, and the fact-finder, in this case the jury, is charged with sifting through the evidence presented at the trial, which is oftentimes conflicting, to ascertain that truth. See Estes v. Texas, 381 U.S. 532, 540, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965) (“Court proceedings are held for the solemn purpose of endeavoring to ascertain the truth which is the sine qua non of a fair trial.”), and Briscoe v. LaHue, 460 U.S. 325, 335, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983) (“ ‘It is precisely the function of a judicial proceeding to determine where the truth lies.’ ”), quoting Imbler v. Pachtman, 424 U.S. 409, 439, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (White, J„ concurring in the judgment). To allow the defendant, or the State for that matter, to unilaterally control what theories of criminal liability are submitted to the jury would inhibit the basic truth-seeking function of a trial and would force the fact-finder to choose between two alternatives that may not necessarily reflect the truth — convicting the defendant of an offense that may not necessarily fit the crime or acquitting the defendant even when the defendant is clearly guilty of some offense. See, e.g., People v. Barton, 12 Cal.4th 186, 196, 906 P.2d 531, 536, 47 Cal.Rptr.2d 569, 574 (1995) (“Truth may lie neither with the defendant’s protestation of innocence nor with the prosecution’s assertion that the defendant is guilty of the offense charged, but at a point between these two extremes: the evidence may show that the defendant is guilty of some intermediate offense included within, but lesser than, the crime charged.”). Neither the State nor society in general has an interest in convicting a criminal defendant of a crime greater than the crime supported by the evidence, and a criminal defendant does not have a right to an acquittal when the evidence establishes that he or she has committed some crime, even if not the greater crime.

Therefore, we hold, as have many other jurisdictions, that a trial court may, either sua sponte or at the request of the State, instruct the jury on a lesser-included offense that is supported by the evidence, even over the objection of one or both of the parties. This is not to say that a trial court is required to sua sponte instruct the jury on a lesser-included offense when there is evidence to support such an instruction; to the contrary, there is no such duty on the part of a trial court. See, e.g., Bush v. State, 695 So.2d 70, 113 (Ala.Crim.App.1995), aff'd, 695 So.2d 138 (Ala.1997) (recognizing that a trial court is not required to sua sponte instruct on a lesser-included offense if not requested). Nor do we hold that forgoing instructions on lesser-included offenses cannot be sound trial strategy on the part of defense counsel; indeed, this Court has held that such a strategy may be reasonable in some cases. See, e.g., Parker v. State, 510 So.2d 281 (Ala.Crim.App.1987). Rather, we hold, only that a trial court, in exercising its considerable discretion in formulating its jury instructions, is not bound by such an all-or-nothing defense strategy and may instruct the jury on a lesser-included offense that is supported by the evidence if it so chooses.

Therefore, we find no error on the part of the trial court in sua sponte, and over the defendant’s objection, charging the jury on heat-of-passion manslaughter as a lesser-included offense of murder.

II.

Harbin also contends that the trial court erred in refusing to instruct the jury on criminally negligent homicide as a lesser-included offense of murder. He maintains that there was evidence — specifically, his two statements to police in which he claimed that he forgot that the knife was in his hand when he stabbed Harris— to support the charge.

“ ‘A person accused of the greater offense has a right to have the court charge on lesser included offenses when there is a reasonable theory from the evidence supporting those lesser included offenses.’ MacEwan v. State, 701 So.2d 66, 69 (Ala.Crim.App.1997). An accused has the right to have the jury charged on ‘ “any material hypothesis which the evidence in his favor tends to establish.” ’ Ex parte Stork, 475 So.2d 623, 624 (Ala.1985). ‘[E]very accused is entitled to have charges given, which would not be misleading, which correctly state the law of his case, and which are supported by any evidence, however[ ] weak, insufficient, or doubtful in credibility,’ Ex parte Chavers, 361 So.2d 1106, 1107 (Ala.1978), ‘even if the evidence supporting the charge is offered by the State.’ Ex parte Myers, 699 So.2d 1285, 1290-91 (Ala.1997), cert. denied, 522 U.S. 1054, 118 S.Ct. 706, 139 L.Ed.2d 648 (1998). However, ‘[t)he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense.’ § 13A-1-9(b), Ala.Code 1975. ‘The basis of a charge on a lesser-included offense must be derived from the evidence presented at trial and cannot be based on speculation or conjecture.’ Broadnax v. State, 825 So.2d 134, 200 (Ala.Crim.App.2000), aff'd, 825 So.2d 233 (Ala.2001), cert. denied, 536 U.S. 964, 122 S.Ct. 2675, 153 L.Ed.2d 847 (2002). ‘ “A court may properly refuse to charge on a lesser included offense only when (1) it is clear to the judicial mind that there is no evidence tending to bring the offense within the definition of the lesser offense, or (2) the requested charge would have a tendency to mislead or confuse the jury.” ’ Williams v. State, 675 So.2d 537, 540-41 (Ala.Crim.App.1996), quoting Anderson v. State, 507 So.2d 580, 582 (AIa.Crim.App.1987).”

Clark v. State, 896 So.2d 584, 641 (Ala.Crim.App.2000) (opinion on return to remand).

In this case, there was no reasonable or rational theory from the evidence to support a chai’ge on criminally negligent homicide. The only evidence supporting such a charge, as Harbin concedes, is his own statements to police in which he claimed that he had forgotten that the knife was in his hand when he stabbed Harris. However, in Ex parte McWhorter, 781 So.2d 330 (Ala.2000), the Alabama Supreme Court recognized that, in certain situations, an accused’s self-serving statements may not be sufficient, alone, to warrant an instruction on a lesser-included offense. In Ex paHe McWhorter, the appellant had given a statement to the police in which he initially stated that he was so intoxicated at the time of the crime that he did not remember it. However, as the interview with police continued, the appellant began to remember how the crime was committed, and he confessed, providing great detail. On appeal, he argued that the trial court had erred in not instructing the jury on a number of lesser-included offenses, including felony murder, intentional murder, and manslaughter, based on his statement to the police that he had been intoxicated at the time of the crime. In finding that the trial court had not erred in not instructing the jury on the lesser-included offenses, the Supreme Court stated:

“The evidence offered by McWhorter as to his alleged intoxication was glaringly inconsistent with his own statement giving detailed descriptions of the events occurring at the crime scene. No evidence substantiated his claim to have been intoxicated at the time of the killing, and, indeed, the other evidence as to his condition at the time of the crime was totally consistent with the proposition that he was sober. We hold that McWhorter’s self-serving statements suggesting he was intoxicated at the time of the killing, statements made in his internally inconsistent interview by Detective Maze, is, as a matter of law, insufficient to satisfy the rigorous standard of showing that the intoxication relied upon to negate the specific intent required for a murder conviction amounted to insanity.”

Ex parte McWhorter, 781 So.2d at 342 (emphasis added).

Subsequently, in Clark, supra, this Court, relying on Ex parte McWhorter, held that the trial court had not erred in not instructing the jury on heat-of-passion manslaughter when the only evidence supporting such an instruction was the appellant’s own statement to police. We explained:

“Although McWhorter did not involve the same factual situation as that presented here, we find the Alabama Supreme Court’s opinion in McWhorter to be persuasive in our resolution of this issue. In this case, as in McWhorter, the only evidence supporting a charge on heat-of-passion manslaughter was Clark’s self-serving statement to the police. Although that statement was not internally inconsistent, as was the statement in McWhorter, it was directly refuted by undisputed physical evidence from the crime scene. When police officers arrived at the crime scene, the stick that Clark claimed Ewing had wielded as he approached Clark in front of the checkout counter was found propped up on end against the wall in a corner behind the counter. Under Clark’s theory of the case, either he or a stabbed and bleeding Ewing must have taken the time at some point either during the struggle or after the struggle to walk behind the counter and place the stick on end up against the wall. This theory is simply not reasonable.
“We will not find plain error in a trial court’s refusal to instruct a jury on a lesser-included offense where the only evidence tending to bring the crime within the definition of that lesser-included offense is a defendant’s self-serving statement and where that statement is directly refuted by undisputed physical evidence. We hold, therefore, that under the circumstances in this case, it was not plain error for the trial court not to instruct the jury on heat-of-passion manslaughter as a lesser-included offense of capital murder.”

Clark, 896 So.2d at 642.

Here, as in Ex parte McWhorter and Clark, the two statements Harbin made to police were the only support for a charge on criminally negligent homicide. Although Harbin consistently asserted in both statements that he had forgotten that the knife was in his hand when he stabbed Harris, another crucial part of his statements contained a glaring inconsistency— in his first statement, Harbin admitted that he had pulled the knife out in response to the fight, while in his second statement Harbin stated that he already had the knife out and was cleaning his fingernails in the parking lot of the gas station when the fight broke out. In addition, the undisputed evidence indicated that the knife used by Harbin was over seven inches long and that Harris suffered from not one, but three, separate stab wounds. Under Harbin’s theory of the case then, he stabbed Harris three separate times while holding a knife over seven inches long without knowing it. This theory is simply not reasonable.

Moreover, we note that a charge on criminally negligent homicide, although arguably consistent with Harbin’s statements to police, would have been inconsistent with the theoiy of defense he presented at trial: self-defense or defense of others. See § 13A-3-23, Ala.Code 1975. As noted above, Harbin requested and received a jury instruction on self-defense or defense of others.

“It is a well accepted principle of law that a claim of self-defense necessarily serves as an admission that one’s conduct was intentional. Harper v. State, 534 So.2d 1137 (Ala.Cr.App.1988). In other words, a person simply cannot negligently or recklessly defend himself. The decision to defend one’s self, whether justified or not, is by its very nature a conscious and intentional decision.”

Lacy v. State, 629 So.2d 688, 689 (Ala.Crim.App.1993). Thus, by asserting self-defense or defense of others and having the trial court instruct the jury on that defense, Harbin necessarily admitted that he intentionally killed Harris, and a jury instruction on criminally negligent homicide would have been inconsistent with this defense. See, e.g., McCollum v. State, 678 So.2d 1210 (Ala.Crim.App.1995); Marshall v. State, 668 So.2d 891, 892 (Ala.Crim.App.1995); and Harris v. State, 542 So.2d 1312 (Ala.Crim.App.1989). A trial court does not err in refusing to give an instruction that is inconsistent with the defense strategy. See Ex parte McWhorter, 781 So.2d at 339 (“Had an instruction been requested that would have conflicted with defense strategy, there is no error in the trial court’s failure to give the instruction.”); Stallworth v. State, 868 So.2d 1128, 1165 (Ala.Crim.App.2001) (trial court did not err in not instructing the jury on lesser-included offenses because “instructing the jury on any lesser-included offense was not consistent with Stallworth’s defense at trial”); and Johnson v. State, 820 So.2d 842, 865 (Ala.Crim.App.2000), aff'd, 820 So.2d 883 (Ala.2001) (“When instructions are inconsistent with the defense strategy, there is no error in failing to give the challenged instruction.”).

Therefore, under the circumstances in this case, we find no error on the part of the trial court in refusing to instruct the jury on criminally negligent homicide as a lesser-included offense of murder.

Based on the foregoing, the judgment of the trial court is affirmed.

AFFIRMED.

BASCHAB, P.J., and McMILLAN and WELCH, JJ., concur.

      . Harbin appeared to pursue these issues as alternative arguments. Harbin’s counsel first requested that the court instruct the jury on criminally negligent homicide. When the court initially indicated that it questioned whether criminally negligent homicide was appropriate, Harbin's counsel then requested that the court instruct the jury solely on murder as charged in the indictment.

      . We note that the State’s specific argument that a request for a jury instruction must be written, not oral, and that, thus, Harbin’s oral request for a charge on criminally negligent homicide was not sufficient to preserve that issue for review is meritless. As noted by the Alabama Supreme Court in Ex parte McCall, 594 So.2d 628, 630 (Ala.1991): "[Ain oral request for a jury instruction fis] sufficient to preserve error in a criminal case.’’ See also Ex parte Pettway, 594 So.2d 1196 (Ala.1991).

      . It is well established that heat-of-passion manslaughter " 'is designed to cover those situations where the jury does not believe a defendant is guilty of murder but also does not believe the killing was totally justified by self-defense.' " Williams v. State, 675 So.2d 537, 541 (Ala.Crim.App.1996), quoting Shultz v. State, 480 So.2d 73, 76 (Ala.Crim.App.1985).

      . In Mitchell v. State, 706 So.2d 787 (Ala.Crim.App.1997), this Court held that the trial court did not err in charging the jury on felony murder as a lesser-included offense of capital murder over the defendant’s objection. However, the sole argument raised by the defendant in that case was whether felony murder was a lesser-included offense of the capital murder. The defendant did not argue that he was entitled to pursue an all-or-nothing approach and, thus, this Court did not address that issue.

      . In Alabama, either party may request a jury instruction under Rule 21.1, Ala.R.Crim.P.

      . In this case, the State did not voice an opinion on the issue one way or the other.

      . Alabama has a substantially similar definition of lesser-included offense. See § 13A-1-9(a), Ala.Code 1975. In addition, Rule 13.2(c), Ala.R.Crim.P., provides that "[sjpeci-fication of an offense in an indictment or information shall constitute a charge of that offense and of all lesser offenses necessarily included therein.'' Thus, in Alabama, as a matter of law, a defendant is on notice that he or she is charged not only with the specific offense set out in the indictment, but also with all lesser-included offenses to that offense.

      . We nole that Harbin's reliance on Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984), is misplaced. The issue in Spaziano was whether the trial court had erred in not instructing the jury on lesser-included offenses after the defendant refused to waive the statute of limitations on those offenses. In addressing this issue, the United States Supreme Court noted that "there may well be cases in which the defendant will be confident enough that the State has not proved capital murder that he will want to take his chances with the jury,” and that in those cases, it could see "little reason to require him not only to waive his statute of limitations defense, but also to give the State what he perceives as an advantage — an opportunity to convict him of a lesser offense if it fails to persuade the jury that he is guilty of capital murder.” 468 U.S. at 456-57, 104 S.Ct. 3154. Although the Court recognized the validity of an all-or-nothing strategy, the Court did not hold that a trial court was bound by that strategy if the defendant elected to pursue it.