¶1dissenting.
¶2I disagree with the majority opinion in its holding that the "exclusion that might have been available under the Dead Man's statute has been waived by the use of the depositions in support of the motion for summary judgment and the trial court erred in excluding the testimony of Josephine, Patrick, and Robert R. Taylor."
¶3I believe the majority opinion of the Court of Appeals was correct in holding that the exclusion under the Dead Man's statute was not waived. I would further point out that I agree with Judge Sullivan's concurring opinion in which he states his disagreement with Dodd v. Estate of Yanan (1992), Ind.App., 587 N.E.2d 1348; notwithstanding this, he concurs with the majority in holding that Josephine did not waive the incompetency of the witness by resorting to Ind.Trial Rule 36.
¶4I would affirm the trial court.