¶1dissenting.
¶21 The majority has determined this matter on an issue-tolling under 12 0.$.2001, § 101-which was not framed or argued by the parties This 2001 action on a 1989 promissory note was submitted to the trial court by the parties as an agreed question of law on stipulated facts and we are not free to substitute our own issues for those issues which were actually presented below.
¶312 It is well settled that appellate courts are not free to raise issues sue sponte and address claims or defenses that the parties did not present in the court below. Jordan v. Jordan, 2006 OK 88, 151 P.3d 117, 120. Our decisions recognize that in a case such as this where the parties have submitted their case to the trial court on an agreed statement of facts, it is our duty on appeal to apply the law to those facts as a court of first instance and to direct judgment accordingly. Rist v. Westhoma Oil Co., 1963 OK 126, 385 P.2d 791, 792; Landy v. First National Bank & Trust Co. Of Tulsa, 1962 OK 12, 368 P.2d 987, 989. A judgment based on an agreed statement of facts is a mere legal conclusion on such facts and the only question presented for review is the propriety of the judgment on the facts so agreed upon. Anderson v. Keystone Supply Co., 1923 OK 410, 98 Okla. 224, 220 P. 605, 605-606.
¶413 In Whitten v. Kroeger, 188 Okla. 327, 82 P.2d 668, 671 (1938), an action brought to recover on a promissory note was submitted *1165to the trial court upon an agreed statement of facts and we rejected the defendants' attempt to raise for the first time on appeal the defense of a statute of limitations which they had not raised by the agreed statement of facts. Another limitations statute had been raised below, but it was held inapplicable and not subject to review. Based on previous decisions, this Court found that where a case is submitted on an agreed statement of facts, that agreed statement supersedes the pleadings and the only question which may be considered is whether such facts require judgment for plaintiff as a matter of law. McGrath v. Rorem, 128 Okla. 168, 252 P. 418, 419-420 (1926), followed the general rule that where facts are submitted to the court by agreement, it is necessary only for the court to apply the law to those facts; further, that only questions of law are raised for review on appeal. The Court concluded that such an agreement has the effect of waiving any error in the action of the court in its rulings on the pleadings. See also Goodwin v. Kraft, 23 Okla. 329, 101 P. 856, 859 (1909).
¶5T4 The parties before us agreed to their statement of facts and submitted to the trial court the legal issue of which statute of limitations applied to the action on the subject promissory note: was it five years under 12 0.S.1981 § 95, which was in effect when the note was executed, or six years under 12A O.S. Supp.1992 § 3-118(a), which was enacted after the note was executed. The parties stipulated that the time period which was the focus of concern was March 5, 1991 to October 18, 1996, during which time defendant made no payments on the note. The parties agreed that if the five year general
¶6statute applied, plaintiffs cause of action would be time barred because defendant's October 18, 1996 payment was beyond five years from the March 5, 1991 payment. Conversely, if the six year limitation of 12A 0.8. Supp.1992 § 3-118(a) should apply and be given retroactive application, the matter would proceed to trial on the merits as a result of defendant's October 18, 1996 payment, which was within the 6 year period from the prior March 5, 1991 payment, creating another 6 year period and making the September 28, 2001 filing of suit timely. Which limitations statute applied is the question the parties framed and submitted to the trial court and then to us. The trial court found that 12A O.S. Supp.1992 § 3-118(a) could not be applied retroactively and that the statute of limitations applicable to the action was five years under 12 0.8. 95. The trial court accordingly dismissed Plaintiffs suit as time-barred as it was filed fewer than six years but more than five years after the 1996 payment, as agreed upon by the parties. In this appeal from an agreed question it is our duty to apply the law to the question submitted by the parties and answered by the trial court.
¶7T5 I believe the trial court's ruling that 12A O.S. Supp.1992 3-118(a) could not be applied retroactively was correct and I would affirm its judgment in favor of defendant.