dissenting.
I respectfully dissent.
I believe the majority construes Indiana Code 20-9.1-2-13 too narrowly. The majority states, “Examination of the statute reveals that the only change of equipment intended to be authorized by the legislature as a basis for renegotiation under the statute was one involving increased seating capacity.” At 858. My examination of the statute reveals otherwise.
My view of the statute imparts a twofold purpose: 1) to permit the “governing body” (here the School Corporation) to require bus drivers to obtain buses with more seats; and 2) to allow for the renegotiation of the contract when a bus driver is asked by the School Corporation to obtain different equipment during the term of the contract, whether the “equipment” is a bus with greater seating capacity, additional safety features to be implemented on an existing bus, or any other capital expenditure on the part of the bus driver resulting from a directive from the “governing body.” This reading is supported by the *860apparent legislative purpose for renegotiation.
The bus driver naturally factors the cost of capital into his bid for the job. His assumption is that the cost of capital will remain constant or fairly constant — it is a “fixed cost” of doing business. When the School Corporation requests an additional capital outlay, however, his fixed costs change. In return for his acquisition of a newer, larger, or safer bus, he must service a larger debt. He is faced with the choice of increasing the price for his services or absorbing the increased expenses, though the increase in his costs resulted neither from his own actions nor the natural fluctuations of the market.
The “renegotiation clause” in the statute is a legislative recognition that in return for the School Corporation’s ability to change the rules in the middle of the game, the bus driver should be given an opportunity to right the uneven playing field. This rationale holds true whether the required capital investment is a bus with greater seating capacity or whether it is a bus of the same seating capacity. If the legislature intended that the second sentence of Indiana Code 20-9.1-2-13 apply only to a situation where a bus driver is required to furnish “equipment with greater seating capacity” it would have so provided. I would hold that the statute authorizes renegotiation of the contract regardless of what the required capital investment might be.
The majority sua sponte raises the issue of whether the drivers were “required” to buy new buses within the meaning of the statute. As the majority observes, the record reveals that this issue was not raised by the trial court or either party. This issue was not explored by affidavits or other supporting materials permitted by Trial Rule 56, nor was the School Corporation notified that it should present argument on the issue at the hearing on summary judgment. Accordingly, I would hold that the issue is waived and is not a proper basis for reversal.1 Franklin Bank and Trust Co. v. Mithoefer (1990), Ind., 563 N.E.2d 551, 553; Prell v. Trustees of Baird & Warner Mortg. (1979), 179 Ind.App. 642, 386 N.E.2d 1221, 1227, trans. denied.
I would affirm the judgment of the trial court.
. I would also note that under the present rules, Trial Rule 56(H) would not permit us to reverse the trial court’s grant of summary judgment on an issue of fact which was not specifically designated to the trial court. However, Trial Rule 56(H) became effective on January 1, 1991; summary judgment was entered on July 25, 1990.