(dissenting).
Civil Rule 56(c) provides in part that summary judgment shall be rendered forthwith
if the pleadings, depositions and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.
Study of the record has led me to the conclusion the trial court erroneously granted summary judgment because appellee did not demonstrate the absence of a genuine issue *75as to any material issue of fact. In Wilson v. Pollet1 we held:
[T]hat the burden of showing the absence of a genuine issue as to any material fact is upon the moving party. This burden is satisfied when the mov-ant's showing makes it quite clear what the truth is. In ruling on a motion for summary judgment all reasonable inferences from the proofs offered are drawn against movant and viewed in the light most favorable to the party opposing the motion. The court’s function when ruling on a motion for summary judgment is to decide whether or not a genuine issue as to any material fact exists. The court is not to resolve any existing genuine issues as to material facts in determining a summary judgment motion.
These principles were reaffirmed in this court’s recent opinions in Hobbs v. Mobil Oil Corp.2 and McKean v. Hammond.3 In the latter case, the Alaska-Canadian Corp. v. ANCOW Corp.4 and Gilbertson v. City of Fairbanks5 decisions were distinguished on the ground that the burden rests upon the movant for summary judgment to initially demonstrate the absence of a genuine issue as to any material fact before the Gilbertson rule becomes operative.6
Here the basis for appellee’s summary judgment motion, which requested a permanent injunction, was the testimony which was received at the preliminary injunction hearing. Appellant opposed the summary judgment motion on the ground that the evidence which was presented at the hearing on the preliminary injunction showed the existence of genuine issues relating to the material facts as to whether appellant’s execution of the covenant not to compete was obtained through duress; whether as part of the consideration for appellant’s entering into the subject covenant appel-lee agreed to employ appellant; and whether the appellee anticipatorily breached its agreement to employ appellant by firing him in the latter part of May 1967 or whether appellant merely quit.
At the hearing on the preliminary injunction, appellant testified that the first time he was shown the covenant not to compete was on February 13, 1967, the date upon which he signed the document. At that time appellant informed appellee’s president, Willard Gutman, he thought the covenant was too binding. Appellant stated that the main reason why he signed the covenant was that Willard Gutman made the statement that he would ask for a court dissolution of the Northern Heating Oil Corporation. Appellant further testified that rather than lose all he had worked for, he then signed the covenant not to compete. Additionally, appellant also said that he signed the covenant because, after voicing fears concerning unemployment, he was told by Mr. Gutman that appellee would continue to employ him.
The testimony presented at the preliminary hearing is also in conflict as to whether appellant quit his employment with appellee or whether he was fired in contravention of an employment agreement which was agreed to as partial consideration for the covenant not to compete.
Review of the record of the preliminary hearing further reveals that the trial judge at one point informed appellant’s counsel he did not have time to “hear all of the issues involved here with regard to the permanent injunction.” At a subsequent point in the preliminary injunction hearing, the trial judge recognized that appellant’s counsel had raised “several interesting matters that may or may not be the real question.” The trial judge then stated that appellant’s counsel raised “a question of failure of consideration and I believe that there has been insufficient proof to void the covenant at this point.”
*76On the basis of the foregoing, I am of the view that appellee did not meet its initial burden under Civil Rule 56(c) and Wilson v. Pollet7 which required it to demonstrate the absence of a genuine issue as to any material fact. Further, the record discloses that at the preliminary injunction hearing the trial judge resolved existing
genuine issues concerning material facts, yet this same proceeding was used as the sole basis for appellee’s motion for summary judgment. I would therefore, reverse the trial court’s grant of summary judgment and remand for a trial on the merits.
. 416 P.2d 381, 383-384 (Alaska 1966) (footnotes omitted).
. 445 P.2d 933 (Alaska, October 25, 1968).
. 445 P.2d 679 (Alaska, October 7, 1968).
. 434 P.2d 534, 537 (Alaska 1967).
. 368 P.2d 214, 216 (Alaska 1962).
. McKean v. Hammond, 445 P.2d 679 (Alaska, October 7, 1968).
. 416 P.2d 381, 383-384 (Alaska 1966).