dissenting.
I respectfully dissent.
The covenant at issue was limited to twelve months and to a twenty-five mile radius. This is not unreasonable as a matter of law for a salesman dealing with repeat institutional customers. Arizona enforces reasonable restraints, or “those no broader than the employer’s legitimately protectable interests.”1 The arguable part is the provision extending the covenant to “twenty-five (25) miles of any location or geographic area to which the Associate was assigned at the time of, or at any time during the twelve (12) month period immediately preceding, the termination of the Associate’s employment.”2 But Arizona courts apply a “blue-pencil rule” to objectionable covenants, “eliminating grammatically severable unreasonable provisions.”3 This clause can be blue-penciled.
We agree that the district court improperly granted summary judgment sua sponte against Safelite, without providing adequate notice of its intention to do so.4 Because I disagree with the majority over the reasonableness of the covenant not to compete at issue in this case, I would hold that the district court’s error was not harmless, I would reverse and remand for trial.5
. Amex Distributing Co., Inc. v. Mascari, 150 Ariz. 510, 724 P.2d 596, 601 (Ariz.App.1986).
. Appellant’s Excerpts of Record at 4.
. Id. at 600.
. See Univ. of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981); Garaux v. Pulley, 739 F.2d 437, 438-9 (9th Cir.1984).
. See Garaux, 739 F.2d at 438-9.