Petition for Writ of Certiorari — Accord Trucking, Inc., Petitioner v. FedEx Ground Package System, Inc.

NO. _______

In the

Supreme Court of the United States

ACCORD TRUCKING, INC.,

Petitioner,

v.

FEDEX GROUND PACKAGE SYSTEM, INC.,

Respondent.

__________________________

On Petition for a Writ of Certiorari to the

Arizona Court of Appeals, Division One

PETITION FOR A WRIT OF CERTIORARI

Gregory G. McGill

Ryan G. McGill

MCGILL LAW FIRM

4421 N. 75th Street, Ste. 101

Scottsdale, AZ 85251

(480) 970-6720

gregmcgill@mcgillazlaw.com

ryanmcgill@mcgillazlaw.com

Dallin B. Holt

Counsel of Record

FRAZIER LAW PLLC

7702 E. Doubletree Ranch Rd.

Suite 300

Scottsdale, AZ 85258

(480) 691-0975

dholt@frazierlawpllc.net

July 27, 2026

SUPREME COURT PRESS

Counsel for Petitioner

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

QUESTION PRESENTED

The American judicial system is a “party-presentation system” in which courts are to decide only the

claims and defenses raised by the parties. United

States v. Sineneng-Smith, 590 U.S. 371, 375-376 (2020).

The Question Presented is:

Whether a court violates the party-presentation

principle, due process, and the Seventh Amendment by

granting dispositive relief based on a non-jurisdictional

legal theory never raised by the parties.

ii

PARTIES TO THE PROCEEDINGS

Petitioner and Plaintiff/Appellant below

●

Accord Trucking, Inc.,

Respondent and Defendant/Appellee below

●

FedEx Ground Package System, Inc.

RULE 29.6

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, Petitioner

Accord Trucking, Inc. states that it is a privately held

Arizona corporation. Accord Trucking, Inc. has no

parent corporation, and no publicly held corporation

owns 10% or more of its stock.

Respondent FedEx Ground Package System, Inc.

is a subsidiary of FedEx Corporation, which is publicly

traded (NYSE: FDX).

iii

LIST OF PROCEEDINGS

Arizona Supreme Court

No. CV-25-0057-PR

Accord Trucking v. FedEx

Order Denying Review: December 12, 2025

_________________

Arizona Court of Appeals, Division One

No. 1 CA-CV 23-0710

Accord Trucking, Inc., Plaintiff/Appellant, v.

FedEx Ground Package System, Inc.,

Defendant/Appellee

Memorandum Opinion: October 29, 2024

_________________

Superior Court of Arizona, Maricopa County

CV 2018-010982

Accord Trucking, Inc., Plaintiff v.

FedEx Ground Package System, Inc., Defendant

Order Granting Judgment as a Matter of Law:

March 21, 2023

iv

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

PARTIES TO THE PROCEEDINGS ......................... ii

RULE 29.6 CORPORATE DISCLOSURE

STATEMENT ....................................................... ii

LIST OF PROCEEDINGS ......................................... iii

TABLE OF AUTHORITIES ...................................... vi

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 1

CONSTITUTIONAL PROVISIONS INVOLVED...... 1

INTRODUCTION ....................................................... 2

STATEMENT OF THE CASE .................................... 7

1. Proceedings Below ........................................... 7

2. The Parties’ Claims and Legal Defenses......... 8

3. The Decision Below .......................................... 9

4. Effect of the Decision ..................................... 15

5. This Case ........................................................ 15

REASONS FOR GRANTING THE PETITION ....... 16

I.

The Decision Below Conflicts with This

Court’s Party-Presentation Jurisprudence...... 16

II. The Party-Presentation Question is Important

to Civil Litigation and Recurring. ................... 20

III. This is an Ideal Case for Drawing a Clear

Line on the Principle of Party Presentation

in Civil Courts. ............................................... 22

CONCLUSION.......................................................... 24

v

TABLE OF CONTENTS (Cont.)

Page

APPENDIX TABLE OF CONTENTS

OPINIONS AND ORDERS

Order Denying Review, Arizona Supreme Court

(December 12, 2025) ........................................... 1a

Memorandum Opinion, Arizona Court of Appeals

(October 29, 2024) .............................................. 3a

Minute Order Granting Defendant Motion

for Judgment, Superior Court of Arizona,

Maricopa County (March 21, 2023) ................. 27a

Under Advisement Ruling, Superior Court

of Arizona, Maricopa County

(January 31, 2023)............................................ 30a

OTHER DOCUMENTS

Complaint, Filed in Superior Court of Arizona,

County of Maricopa (August 27, 2018) ............ 38a

Joint Pretrial Statement, Superior Court

of Arizona County of Maricopa

(February 3, 2023) ............................................ 69a

Trial Day 6, Partial Transcript

(March 21, 2023) ............................................... 97a

Appellant’s Reply Brief, Filed in the Arizona

Court of Appeals (May 10, 2024) ................... 141a

Linehaul Contractor Operating Agreement

(June 24, 2015) ............................................... 167a

Transportation Service Provider Agreement

(August 26, 2018) ........................................... 171a

vi

TABLE OF AUTHORITIES

Page

CASES

TABLE OF AUTHORITIES

Alexander v. FedEx Ground Package System,

Inc., 765 F.3d 981 (9th Cir. 2014) .................. 8, 12

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986) .............................................. 9

Carlton v. Emhardt,

138 Ariz. 353, 674 P.2d 907 (App. 1983) .......... 10

Carlucci v. Regan,

714 F.2d 171 (D.C. Cir. 1983) ............................. 4

Castro v. United States,

540 U.S. 375 (2003) ............................................ 18

Clark v. Sweeney,

607 U.S. 7 (2025) ......................... 6, 17, 18, 21, 22

Estrada v. FedEx Ground Package System,

Inc., 64 Cal. Rptr. 3d 327 (Ct. App. 2007) .... 8, 12

Greenlaw v. United States,

554 U.S. 237 (2008) ....................... 4, 5, 16, 18, 19

John B. Conomos, Inc. v. Sun Co.,

831 A.2d 696 (Pa. Super. Ct. 2003) ................... 14

Margolin v. National Ass’n of Immigration

Judges, 146 S.Ct. 1285 (2026)..... 6, 17, 18, 21, 22

Reyes v. Town of Gilbert,

247 Ariz. 151 (2019) .......................................... 10

S.G. Borello & Sons, Inc. v.

Department of Industrial Relations,

769 P.2d 399 (Cal. 1989) ................................... 12

Santiago v. Phoenix Newspapers,

164 Ariz. 505 (1990) .......................................... 12

vii

TABLE OF AUTHORITIES (Cont.)

Page

Tarron v. Bowen Machine & Fabricating, Inc.,

225 Ariz. 147, 235 P.3d 1030, (Ariz. 2010) ....... 12

United States v. Rahimi,

602 U.S. 680 (2024)............................................ 3

United States v. Sineneng-Smith,

590 U.S. 371 (2020) ................ i, 4, 5, 7, 16, 17, 19

Wells Fargo Bank v. Arizona Laborers,

201 Ariz. 474 (2002) .......................................... 14

Zuern v. Ford Motor Co.,

188 Ariz. 486 (1996) .......................................... 14

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. II ................................................. 3

U.S. Const. amend. VII .................... i, 1, 16, 19, 21, 23

U.S. Const. amend. XIV ........................................ 1, 15

STATUTES

28 U.S.C. § 1257(a) ............................................... 1, 22

Ariz. Rev. Stat. § 23-350 ........................................... 13

Ariz. Rev. Stat. § 23-355 ........................................... 11

Ariz. Rev. Stat. § 23-902 ................................. 9, 11, 13

Ariz. Rev. Stat. § 23-902(F) ................................ 10, 11

Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ...... 11

Pub. L. No. 95-454, 92 Stat. 1111, Civil Service

Reform Act of 1978............................................... 4

viii

TABLE OF AUTHORITIES (Cont.)

Page

JUDICIAL RULES

Ariz. R. Civ. P. 16(f) ................................................ 3, 8

Ariz. R. Civ. P. 16(f)(2)(B) ........................................ 10

Ariz. R. Civ. P. 16(f)(2)(C).......................................... 10

Ariz. R. Civ. P. 26.1(a)(2) .......................................... 14

Ariz. R. Civ. P. 50................................................ 10, 13

Fed. R. Civ. P. 56 ......................................................... 2

Sup. Ct. R. 29.6 ........................................................... ii

OTHER AUTHORITIES

John Roberts,

Confirm. Hearing on Nomination,

S. Judiciary Comm., 109th Cong.

(Sept. 12, 2005) .................................................... 3

Virginia Declaration of Rights .................................... 5

1

OPINIONS BELOW

The opinion of the Arizona Court of Appeals is

reproduced at App.3a. The order of the Arizona

Supreme Court denying review is reproduced at App.1a.

JURISDICTION

The Arizona Supreme Court denied review on

December 12, 2025. App.1a. Justice Kagan extended

the time to file a petition for a writ of certiorari to

May 11, 2026. Sup. Ct. No. 25A1007. By letter dated

May 28, 2026, the Clerk of Court provided an additional

60 days to file this petition. This Court has jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Const. amend VII

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of

trial by jury shall be preserved . . .

U.S. Const. amend XIV § 1

No State shall . . . deprive any person of life, liberty,

or property, without due process of law.

2

INTRODUCTION

This case concerns the role of courts in the civil

adversarial system nationwide. This case presents an

ideal opportunity to clearly delineate and enforce the

principle of party presentation to ensure that the civil

courts are passive instruments of government and to

prevent trial by ambush. No judge is King. The Declaration of Independence arose from many acts of

tyranny by the King of England, and one act cited:

“For depriving us in many cases of the benefits of Trial

by Jury.”

Here, after five years of discovery, pretrial

motions, and motions for summary judgment, the trial

court decided to move the case forward to trial. On the

eve of trial, a new judge rotated in. After several days

of trial, the new judge, sua sponte and without notice,

introduced new legal theories to dismiss the case. The

new judge did not provide Accord with an opportunity

to research or brief his new dispositive legal theories,

and then quickly dismissed the case. The Arizona

Court of Appeals affirmed this dismissal because it

wrongfully held that Accord was the party who

introduced the legal theories that led to dismissal—

this framing was incorrect. The Court should permit

Accord the opportunity to brief the dispositive legal

theories that were presented by the second judge

without any prior disclosure or notice.

Once a trial judge under Fed. R. Civ. P. 56 properly

evaluates the proffered evidence and argument of the

parties, finds genuine issues of material fact and sets

a jury trial — which implies no legal impediment to

3

jury deliberation or the disputed fact would not be

material — the principle of party presentation limits

the power of the judge at trial to address only legal

theories and defenses that were raised by the parties

before the trial. Here, a retired judge (“Commissioner

Rea” or the “second judge”) rotated into the case on

the eve of trial, raised legal defenses never disclosed,

aired, or briefed by the parties in the litigation or the

Joint Pretrial Statement (“JPTS”) which is the trial

roadmap under Ariz. R. Civ. P. 16(f), and precluded

the jury trial that Judge Mikitish (the “first judge”)

had set for Accord’s core claims. The prejudice from

the lack of notice, briefing, and opportunity to evaluate

the legal defenses for case strategy, settlement or trial

over the prior four-year period, is self-evident.

Trial judge departures from the principle of party

presentation are systemic in large urban areas

throughout the nation that rotate judges, and even in

civil courts that do not rotate. In 2005 Justice Roberts

famously said in confirmation hearings that “Judges

are like umpires. Umpires don’t make the rules; they

apply them. . . . I will remember that it’s my job to call

balls and strikes and not to pitch or bat.” Confirm.

Hearing on Nomination, S. Judiciary Comm., 109th

Cong. (Sept. 12, 2005). And in United States v.

Rahimi, 602 U.S. 680 (2024) Justice Kavanaugh wrote

in a concurring opinion in a criminal case over Second

Amendment rights that “Judges are like umpires, as

THE CHIEF JUSTICE has aptly explained. And in a constitutional system that counts on an independent

Judiciary, judges must act like umpires. To be an

umpire, the judge “must stick close to the text and the

history, and their fair implications,” because there “is

4

no principled way” for a neutral judge “to prefer any

claimed human value to any other.”

In Greenlaw v. United States, 554 U.S. 237 (2008)

Justice Ginsburg wrote in a majority opinion on the

government’s attempt to increase a criminal sentence

in the absence of a cross-appeal that “In our adversary

system, in both civil and criminal cases, in the first

instance and on appeal, we follow the principle of

party presentation. That is, we rely on the parties to

frame the issues for decision and assign to courts the

role of neutral arbiter of matters the parties present.”

In 2020 the principle of party presentation

resurfaced in another criminal case. In United States

v. Sineneng-Smith, 590 U.S. 371, 375-376 (2020),

Justice Ginsburg again writing for the majority stated

“In short, ‘[C]ourts are essentially passive instruments

of government.’ They ‘do not, or should not, sally forth

each day looking for wrongs to right. [They] wait for

cases to come to [them], and when [cases arise, courts]

normally decide only questions presented by the

parties.’”

Finally, in Carlucci v. Regan, 714 F.2d 171 (D.C.

Cir. 1983) which barred access to the courts for lesser

personnel actions that did not involve constitutional

claims after exhaustion under the Civil Service Reform

Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111, Justice

Scalia refused to consider a conclusory sentence about

due process rights in the absence of any briefing on

the exclusiveness of entitlements under the CSRA:

“The premise of our adversarial system is that appellate

courts do not sit as self-directed boards of legal inquiry

and research, but essentially as arbiters of legal questions presented and argued by the parties before them.”

Here, after a last-minute rotation Sr. Commissioner

5

Rea (Ret.) did research before and during trial on several

legal defenses never presented or argued by FedEx

in the case or JPTS and dismissed the jury when Accord

was unable to quickly convince him to allow Judge

Mikitish’s jury trial order to stand on the legal defenses

FedEx disclosed and asserted over the four-year case.

As a prelude to the Declaration of Independence, the

Virginia Declaration of Rights in June 1776 stated:

That all power is vested in, and consequently

derived from, the people; that magistrates are

their trustees and servants, and at all times

amenable to them . . . That no free government, or the blessings of liberty, can be preserved to any people but by a firm adherence

to justice, moderation, temperance, frugality,

and virtue and by frequent recurrence to

fundamental principles.

In the course of events, this Court is called upon

to ensure that judges in our adversarial system do not

evolve into Kings, and this is a case to remind all magistrates to assiduously apply the principle of party

presentation so the judiciary remains impartial, calls

balls and strikes instead of pitching or batting for

one side, and prevents the prejudice created by the

deprivation of a jury at trial based on legal defenses

never raised by the parties in the case.

In sum, this case concerns the limits of the

principle of party presentation, a foundational rule of

the American adversarial system. As this Court has

emphasized, courts ordinarily decide “only the questions

presented by the parties.” Sineneng-Smith, 590 U.S.

at 375-376; see also Greenlaw, 554 U.S. at 243-244.

6

This Court’s two most recent party-presentation

decisions confirm the principle’s continuing force. In

Clark v. Sweeney, 607 U.S. 7, 9 (2025) (per curiam),

this Court summarily reversed the Fourth Circuit for

“granting relief” on a claim the habeas petitioner “never

asserted and that the State never had the chance to

address.” And in Margolin v. National Ass’n of Immigration Judges, 146 S.Ct. 1285, 1288 (2026) (per curiam),

this Court again summarily reversed — this time in a

civil action — where the Fourth Circuit “sua sponte

addressed” a dispositive question the parties never

raised and “did so without giving either side a chance

to address its theory.” Here, in Margolin’s words, the

courts below decided “a case different from the one

[Accord] advanced.” 146 S.Ct. at 1288 (citation omitted).

As shown below, the decision here rests on the same

error those cases condemn.

The decision below departed from that principle.

After more than five years of litigation framed by the

parties’ pleadings, arguments, and evidence, the court

granted dispositive relief based on legal defenses that

neither party ever advanced. The case was thus resolved

on a ground that was never presented, never briefed,

and never subjected to adversarial testing.

That approach has serious consequences. When

courts decide cases on claims and legal defenses the

parties did not raise, they cease to act as neutral arbiters

and instead assume the role of advocate. The resulting

decisions undermine the adversarial process, create

uncertainty about the limits of judicial authority, prejudice the losing party deprived of notice, litigation

strategy, and briefing opportunity, and risk depriving

litigants of their right to have disputed issues resolved

by a jury.

7

Lower courts have increasingly treated the principle

of party presentation as a discretionary practice

rather than a binding limitation on judicial authority,

allowing courts to affirm or grant dispositive relief on

grounds never argued by the parties. In addition, in

Sineneng-Smith at 590 U.S. 371, Justice Ginsburg

stated that “The party presentation principle is supple,

not ironclad” and there are instances when “a modest

initiating role for the court is appropriate.”

This case presents an ideal opportunity to draw a

brighter line in civil litigation that judges may not

resolve cases on legal theories or defenses the parties

never disclosed, asserted or presented.

STATEMENT OF THE CASE

1.

Proceedings Below

This case arises from a multi-year commercial

dispute between Petitioner Accord Trucking, Inc. and

Respondent FedEx Ground Package System, Inc. The

litigation proceeded in Arizona state court for more

than five years, during which the parties framed the

issues through their pleadings, motions, and evidentiary

submissions. App.38a, App.69a, App.97a.

The trial court entered judgment at trial in favor

of Respondent. App.27a, App.97a. The Arizona Court of

Appeals affirmed. App.3a. The Arizona Supreme Court

denied review. App.1a.

8

2.

The Parties’ Claims and Legal Defenses

Throughout the litigation, the parties advanced

competing legal theories and defenses on liability and

relief. The claims, defenses, and dispositive motions

defined the issues to be resolved, and the case proceeded

on that basis through discovery and dispositive briefing

before the first judge, Joseph Mikitish. App.38a, App.

69a. Before trial, the parties through counsel entered

into a mandatory Joint Pretrial Statement that served

as the roadmap for trial. Ariz. R. Civ. P. 16(f). At no

point did FedEx present the legal defenses on which

the second judge ultimately relied to grant it a JMOL

that prevented the jury from deciding the contract and

tort claims at trial. App.69a, App.97a.

Legal defenses raised by the court, not the parties,

at trial were as follows:

(i)

Estrada v. FedEx Ground Package System,

Inc., 64 Cal. Rptr. 3d 327 (Ct. App. 2007) and

Alexander v. FedEx Ground Package System,

Inc., 765 F.3d 981 (9th Cir. 2014), both

finding FedEx liable for misclassification on

similar contracts and control factors, were

inapplicable to Accord v. FedEx because the

Accord case was not rooted in Arizona “labor

laws.”

(ii) The trial court ruled as a matter of law at

trial that the FedEx “point system” in its LCOA

and TSPA contracts which gave “points and

routes” to TSPs who were available to FedEx

each week at least 90% of the time (preventing

any runs for another company), was not a contract term that violated the covenant of good

faith and fair dealing. App.97a.

9

(iii) The FedEx’s deletion of the “full use” provision

when the contract went from the LCOA to the

TSPA in late 2018, after Accord sued FedEx

for a reduction in runs, could not be a basis

for a breach because the TSPA was a “requirements contract.” App.97a.

(iv) The LCOA and TSPA could not fraudulently

misrepresent independent contractor (“IC”)

status as a matter of law even if they were

deceptive as applied. App.97a.

(v) FedEx contracts could not be fraudulent

instruments unless it was first adjudicated

that FedEx had no intention to perform them

(despite the express bar to misclassification

fraud in Ariz. Rev. Stat. § 23-902). App.97a.

(vi) Accord Trucking, Inc. could not be misclassified

as an “employee” as a matter of law because it

was a corporation (an entity FedEx required as

a condition to contract). App.97a.

3.

The Decision Below

Judge Mikitish’s ruling on February 27, 2023

denying FedEx’s motion for summary judgment found

genuine, material facts on breach of contract, misclassification and common law fraud and set the fiveyear case for a jury trial. App.30a. This ruling implied

there were no legal impediments to the claims for trial

purposes, or the disputed fact issues would not be

material. See Anderson v. Liberty Lobby, Inc., 477 U.S.

242 (1986) (Only disputes over facts that may affect

the outcome under the governing law will properly

preclude the entry of summary judgment). On the eve

of trial, Commissioner Rea (Ret.) was rotated in as trial

10

judge, raised legal defenses the parties never raised in

the case, and dismissed Accord’s contract and tort claims

under Ariz. R. Civ. P. Rule 50.

The legal defenses raised by the court at trial

were not in the JPTS, the required roadmap for trial

predicated on disclosed claims and defenses. In Reyes

v. Town of Gilbert, 247 Ariz. 151, 447 P.3d 332 (2019)

the court held that a withheld city traffic impact statement was not a violation because the plaintiff raised

warning signs, not traffic design, as a legal theory in

the case—so the design theory could not be raised at

the time of trial. The court noted the importance of

disclosures in civil litigation: “[The Rule 26.1] disclosure

statement is the primary vehicle by which the parties

are informed of their opponent’s case. Thus, it should

fairly expose the facts and issues to be litigated, as

well as the witnesses and exhibits to be relied upon.”

Reyes also noted the importance of the JPTS, stating

that it must identify all “contested issues of fact and law

that the parties agree are material or applicable.”

Ariz. R. Civ. P. 16(f)(2)(B). It also must include “a separate statement by each party of other issues of fact

and law that the party believes are material.” Ariz. R.

Civ. P. 16(f)(2)(C). The joint pretrial statement supersedes the pleadings and “controls the subsequent course

of the litigation.” Carlton v. Emhardt, 138 Ariz. 353,

355, 674 P.2d 907 (App. 1983).

As to the legal defenses the court raised at trial,

after the court’s JMOL, plaintiff discovered that Ariz.

Rev. Stat. § 23-902(F) provides that a presumption

regarding IC status is overcome if the agreement is

“obtained through misrepresentation, false statements,

fraud . . . “ App.164a. The court’s legal defense regarding

“no labor laws” in support of Accord’s contract claim

11

over misclassification left no time to brief and present

Ariz. Rev. Stat. § 23-902. Faced with the surprise legal

defense at trial, Accord cited the Arizona wage act under

Ariz. Rev. Stat. § 23-355 and the federal Fair Labor

Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”) but

Commissioner Rea replied: “You’ll have to do better

than that.” App.165a.

Arizona law in fact supplied the statutory authority

the trial court demanded. Ariz. Rev. Stat. § 23-902(B)

provides that when an employer “procures work to be

done for the employer by a contractor over whose work

the employer retains supervision or control, and the

work is a part or process in the trade or business of

the employer,” the contractor and its employees are,

“within the meaning of this section, employees of the

original employer.” And Ariz. Rev. Stat. § 23-902(F)

provides that a written independent-contractor

agreement “shall be null and void and create no

presumption of an independent contractor relationship”

if either party’s consent was “[o]btained through misrepresentation, false statements, fraud or intimidation.”

Because the trial court raised its “no labor laws” theory

for the first time at trial, Accord had no opportunity

to research and brief that statute; pressed for an

immediate answer, counsel cited the Arizona Wage

Act instead. App.110a, App.164a-165a. The framing

stuck: much of the Memorandum Decision is devoted

to the wage statutes that entered the case only in answer

to the trial court’s demand. App.16a-19a. When Accord

cited Ariz. Rev. Stat. § 23-902 on appeal, the Arizona

Court of Appeals measured subsections (B), (D)(1),

and (F) against a single question — whether they make

a corporation an “employee” under the wage statutes

— and did not consider subsection (F) as statutory

12

support for the fraud and misrepresentation claims

that Judge Mikitish had set for the jury. App.17a-18a,

App.30a. That is the harm the principle of party presentation guards against: a dispositive theory injected

without notice that dictates the terms on which every

later argument is heard.

And as to whether the LCOA and TSPA contracts,

as applied, could provide a basis for a misrepresentation

claim, see Estrada, 64 Cal. Rptr. 3d at 334 (quoting the

trial court’s description of FedEx’s operating

agreement as “a brilliantly drafted contract creating

the constraints of an employment relationship with

[the drivers] in the guise of an independent contractor

model”). See also Tarron v. Bowen Machine &

Fabricating, Inc., 225 Ariz. 147, 152, 235 P.3d 1030, 1035

(Ariz. 2010) where the court concluded that “contract

language does not determine the relationship of the

parties.” See also Santiago v. Phoenix Newspapers, 164

Ariz. 505, 794 P.2d 138 (1990): “Whether an employeremployee relationship exists may not be determined

as a matter of law in either side’s favor, because reasonable minds may disagree on the nature of the

employment relationship. A jury could infer from

these facts that Frausto was an employee . . .” Finally,

see Alexander, 765 F.3d 981 where the court stated:

“the label placed by the parties on their relationship is

not dispositive, and subterfuges are not countenanced.”

765 F.3d at 989 (quoting S.G. Borello & Sons, Inc. v.

Department of Industrial Relations, 769 P.2d 399, 404

(Cal. 1989)). Thus, many courts recognized that the

use of the FedEx contract could be deceitful and

harmful to the trucker.

Because the court raised for the first time at trial

the legal defense that the FedEx contracts could not

13

serve as a basis for a misrepresentation claim because

there were no “labor laws” to support it in Arizona,

there was no time to find and brief Ariz. Rev. Stat.

§ 23-902 that statutorily allowed a misrepresentation

claim and Accord’s tort claims were dismissed under

Rule 50.

In affirming, the Arizona Court of Appeals acknowledged Accord’s argument that “the grounds the

superior court relied on had not been disclosed or argued

before trial,” but held that “[t]he record does not show

any violation of this principle.” App.14a. In the Arizona

Court of Appeals’ view, because Accord “expressly

relied on [A.R.S. § 23-350] to support its theory of

damages, the court was obligated to apply that statute

correctly,” and Accord “cannot reasonably contend the

court’s JMOL ruling on this issue was an unfair

surprise at trial.” App.15a. But the exchange the

Arizona Court of Appeals itself quoted shows the

opposite sequence: it was the trial court that demanded

authority from counsel — “There’s got to be a basis for

that. . . . It’s got to be a statute or some other form of

authority.” App.15a. The Trial Day 6 transcript reflects

the same pattern. The trial court asked whether the

FLSA “ha[s] a definition of ‘employee,’” and Accord’s

counsel read Ariz. Rev. Stat. § 23-350 in direct response

to the court’s question, as a comparison to the federal

definition. App.110a. And when the trial court granted

judgment, it announced a theory of its own devising:

“[I]f we look at other Arizona statutes, there are other

examples of ‘employee’ being defined in a way that

includes corporations. I can’t give you the specifics

right now because I left that paper back in the office.”

App.130a-131a. Citing a statute in answer to a judge’s

question is not party presentation of a dispositive

14

defense the court had prepared in advance. Moreover,

it was the second judge — not FedEx — who demanded

a statutory basis at trial for claims that the first judge

had allowed to proceed to a jury after five years of litigation. App.15a, App.30a, App.110a. Entering judgment on grounds generated by the court’s own demand,

rather than on grounds the parties presented, is a

classic violation of the principle of party presentation.

In addition, virtually all civil jurisdictions throughout the nation require a timely disclosure of legal

theories and defenses by the parties. In Arizona, Rule

26.1(a)(2) requires timely disclosure of legal defenses

for settlement or to prepare for trial but that rule was

not enforced here. The legal defenses the trial court

raised for FedEx were not in the Joint Pretrial Statement. App.69a. In Zuern v. Ford Motor Co., 188 Ariz.

486, 937 P.2d 676 (1996) the court stated:

Plaintiffs first disclosed that new . . . theory

informally during their expert’s supplemental

deposition one month before trial, and then

formally through a supplemental disclosure

a few days later. Thus, the trial court did not

err in excluding the evidence based on plaintiffs’ failure to timely and properly disclose

the new liability theory.

Moreover, FedEx cited Arizona law throughout the

case, but at trial Commissioner Rea applied Pennsylvania law to the Arizona trial, not Wells Fargo Bank

v. Arizona Laborers, 201 Ariz. 474, 38 P.3d 12 (2002)

which may have sustained the implied covenant claim.

Despite that, Pennsylvania law has a doctrine similar

to Arizona’s duty of good faith and fair dealing. See

John B. Conomos, Inc. v. Sun Co., 831 A.2d 696

(Pa. Super. Ct. 2003): “In the absence of an express

15

term, the doctrine of necessary implication may act

to imply a requirement necessitated by reason and

justice without which the intent of the parties is

frustrated.”

Thus, the court below affirmed the judgment on

legal defenses not asserted by FedEx throughout the

five-year case. Rather than resolving the dispute based

on the claims and defenses framed by the litigants and

allowed by the first judge to go to the jury on disputed

issues of material fact, the court adopted several legal

defenses that FedEx never pled, disclosed, argued,

briefed, or subjected to adversarial testing. The JMOL

by Commissioner Rea (Ret.) resolved the core case on

a basis that Accord had no opportunity to address or

brief during the litigation that survived a FedEx motion

for summary judgment and was set for a jury trial.

App.27a, App.69a, App.97a.

4.

Effect of the Decision

By affirming on several legal defenses never raised

by FedEx, the court displaced the adversarial framework that governed the proceedings and resolved the

case on issues outside the scope of the parties’ presentation. That approach resulted in the disposition of

Petitioner’s claims without the opportunity to present

evidence, argument, and law directed to the legal

defenses that ultimately controlled the outcome.

5.

This Case

This case squarely presents whether a court may

grant dispositive relief based on legal theories never

raised by the parties, consistent with the principle of

party presentation, due process under the Fourteenth

16

Amendment, and the Seventh Amendment right to a

jury trial.

REASONS FOR GRANTING THE PETITION

I.

THE DECISION BELOW CONFLICTS WITH THIS

COURT’S PARTY-PRESENTATION JURISPRUDENCE.

This Court has repeatedly reaffirmed that the

American judicial system is a “party-presentation

system” in which courts ordinarily decide only the

claims and defenses raised by the parties. SinenengSmith, 590 U.S. 371, 375-376. That principle reflects

the basic structure of adversarial adjudication: parties

frame the issues, develop the record, and present the

arguments – and courts act as neutral arbiters of the

matters the parties present.

In Greenlaw, this Court through Justice Ginsburg

explained that “in both civil and criminal cases, in the

first instance and on appeal,” courts “rely on the

parties to frame the issues for decision and assign to

courts the role of neutral arbiter of matters the parties

present.” 554 U.S. 237, 243 (2008). The Court warned

that judges do not “sally forth each day looking for

wrongs to right,” but instead “normally decide only

questions presented by the parties.” Id. at 244.

That rule is not a technicality. It preserves the

distinction between advocate and adjudicator. It protects

the litigants’ ability to decide their litigation strategy

regarding the claims, defenses, facts, and discovery to

pursue. And it ensures that the issues controlling the

17

outcome of a case are subjected to adversarial testing

before a court resolves them.

The decision below cannot be reconciled with

those principles. After more than five years of litigation

defined by the parties’ pleadings, arguments, and

evidentiary submissions, the court granted dispositive

relief based on a legal theory that neither party

advanced. The case was resolved on a ground that was

never presented, never briefed, and never tested

through the adversarial process.

This Court’s decision in Sineneng-Smith, a case

involving an immigration consultant charged with

federal felonies, illustrates the problem. There, the

Court unanimously vacated a Ninth Circuit judgment

because the court of appeals had “departed so drastically

from the principle of party presentation as to constitute

an abuse of discretion.” 590 U.S. at 375. The panel had

invited amici to brief issues the parties had not raised

and then resolved the case on those grounds. Id. at

376-378. This Court held that such a judicial takeover

was inconsistent with the proper role of courts in an

adversarial system. Id. at 375-376.

This Court has since enforced that limit twice,

each time summarily. In Clark v. Sweeney, the Fourth

Circuit “transgressed the party-presentation principle”

by granting habeas relief on a claim the petitioner “never

asserted and that the State never had the chance to

address”; this Court reversed, explaining that courts

“call balls and strikes” and do not “get a turn at bat.”

607 U.S. 7, 9 (2025) (per curiam). In Margolin v.

National Ass’n of Immigration Judges, this Court

reversed a civil judgment because the Fourth Circuit

“sua sponte addressed” a dispositive question the

parties never raised and “did so without giving either

18

side a chance to address its theory” — a “drasti[c]”

departure that “constitute[d] an abuse of discretion.”

146 S. Ct. 1285, 1288 (2026) (per curiam). The trial court

here did what Clark and Margolin forbid: it injected a

half-dozen legal defenses that FedEx never raised,

disclosed, or asserted in the required Joint Pretrial

Statement, announced a dispositive Wage Act theory

FedEx never presented — one the court had researched

on its own (“I can’t give you the specifics right now

because I left that paper back in the office”) — and

entered judgment on those grounds. App.69a, App.97a,

App.130a-131a.

The same structural problem is present here. The

court below did not merely refine an argument the

parties made. It adopted legal defenses that FedEx

never disclosed or advanced before trial. That approach

does not supplement the adversarial process; it replaces

it. It permits courts to create and decide legal theories

for the parties, converting neutral adjudication into

judicial issue creation. The Arizona Court of Appeals

held otherwise only by treating counsel’s answer to

the trial court’s own question as party presentation of

the dispositive defense. App.14a-15a. But a litigant does

not “frame the issues for decision,” Greenlaw at 554

U.S. at 243, when the court demands statutory authority and then deploys the answer as the basis for a ground

the court researched itself. App.110a, App.130a-131a.

This Court has long recognized that the adversarial

system rests on the premise that parties represented

by counsel are responsible for advancing the facts and

arguments entitling them to relief. See Castro v. United

States, 540 U.S. 375, 386 (2003) (Scalia, J., concurring

in part and in the judgment). In fact, this bulwark of

the civil litigation system is embedded in the Joint

19

Pretrial Statement. When courts disregard the JPTS

and decide cases on unpresented theories, the partypresentation premise collapses. The parties lose control

over the issues that determine the outcome, and the

court assumes a role the adversarial system does not

assign to it.

The consequences are especially serious when the

unpresented theory is dispositive. A court that grants

or affirms dispositive relief on a legal defense never

raised by the defendant does more than choose among

competing arguments. It determines the case on a basis

the losing party had no fair opportunity to address,

brief or argue. That creates due-process concerns and

undermines confidence in the fairness of the resulting

judgment.

Those concerns are heightened where, as here,

judicial theory creation results in the disposition of

claims that otherwise would have proceeded to a jury.

The Seventh Amendment preserves the right to have

disputed issues tried by a jury in suits at common law.

When a court removes those issues from the jury based

on a theory neither party raised, it bypasses both

adversarial testing and the constitutional structure

that protects the jury’s role.

The decision below conflicts with this Court’s partypresentation jurisprudence in a direct and recurring way. Greenlaw and Sineneng-Smith confirm that

courts are to decide the issues the parties present. The

decision below authorizes civil courts to grant dispositive

relief on issues the defendant did not present. That

conflict warrants this Court’s review so the line on the

principle of party presentation in civil cases is more

clearly drawn.

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II. THE P ARTY -P RESENTATION Q UESTION IS

IMPORTANT TO CIVIL LITIGATION AND RECURRING.

The principle of party presentation is a foundational

feature of the American adversarial system. It defines

the proper role of courts and ensures that legal disputes

are resolved through the presentation of competing

arguments by the parties themselves. The principle is

essential to fairness because parties must have notice

of the issues that may determine their rights and a

meaningful opportunity to address them.

The decision below reflects a growing departure

from that principle. Civil court judges throughout the

nation increasingly treat the principle of party presentation not as a binding limitation on judicial

authority, but as a discretionary practice that may be

disregarded whenever a court identifies an alternative

ground for decision, whether disclosed in the case or not.

That approach permitted Commissioner Rea to grant

dispositive relief on legal defenses FedEx never disclosed, aired or argued in five years of litigation —

until raised by a rotated-in judge at trial — effectively

transforming the trial court from neutral arbiter to

active participant for FedEx in the litigation.

The consequences of that shift are substantial.

When courts decide cases on unpresented theories or

defenses, litigants are deprived of notice and a meaningful opportunity to be heard on the issues that determine the outcome of their case. The adversarial process,

which depends on the parties to develop the factual

record and legal arguments, is displaced by judicial

issue creation. The resulting decisions lack the benefit

of adversarial testing and risk undermining confidence

in the fairness and reliability of judicial outcomes in

the national civil court system.

21

The problem is not confined to a particular subject

matter. It arises across a wide range of civil and criminal

cases, including appeals from summary judgment,

motions to dismiss, and other dispositive rulings.

Because courts may identify alternative grounds for

decision in virtually any case, the question presented

here recurs frequently and affects the basic structure

of adjudication in federal and state courts across the

country. The issue is especially important where judicial

reliance on unpresented theories results in the disposition of claims that otherwise would have been submitted to a jury. When courts resolve cases on grounds

never raised by the parties, they effectively remove

disputed issues from the jury without the adversarial

process the Constitution presupposes. That practice

threatens the Seventh Amendment’s guarantee of trial

by jury and raises serious due-process concerns.

Absent this Court’s intervention, the scope of the

principle of party presentation will continue to erode.

Some courts will adhere to this Court’s guidance and

limit themselves to the issues the parties present,

while others will treat the principle as optional. The

resulting uncertainty invites inconsistent application

and expands judicial authority beyond its proper bounds.

That this Court has had to summarily reverse partypresentation violations in each of the last two Terms,

see Clark, 607 U.S. 7; Margolin, 146 S.Ct. 1285, confirms

the problem is recurring.

This case presents an appropriate vehicle to address

that important and recurring question and to reaffirm

that courts may not grant dispositive relief based on

legal theories the parties themselves never raised.

22

III. THIS IS AN IDEAL CASE FOR DRAWING A CLEAR

LINE ON THE PRINCIPLE OF PARTY PRESENTATION

IN CIVIL COURTS.

This case is an excellent vehicle for resolving the

question presented in the civil courts. The issue is

cleanly presented by the proceedings below and was

dispositive of the outcome. The court’s decision rested

on a half-dozen legal defenses that FedEx never raised,

disclosed, argued or asserted in the five-year litigation, making the departure from the principle of party

presentation clear and significant. And this Court has

shown that such departures are amenable to summary correction. See Clark, 607 U.S. at 9-10; Margolin,

146 S. Ct. at 1287-1288.

The record cleanly presents the question whether

a court may grant dispositive relief based on legal

defenses never raised by the defendant. There are no

threshold jurisdictional obstacles to this Court’s review.

The judgment below is final, and this Court has jurisdiction under 28 U.S.C. § 1257(a).

The court’s reliance on legal defenses not advanced

by the parties was a central and dispositive feature of

the judgment below. The court affirmed the trial court’s

ruling by adopting legal grounds that were neither pled,

argued, nor subjected to adversarial testing during

the litigation. Review of the question presented would

therefore materially affect the judgment below. At a

minimum, the decision rests on judicial decision-making

that conflicts with this Court’s party-presentation jurisprudence and warrants correction and clarification

regardless of any additional reasoning offered by the

court.

23

The issue is purely legal. It does not require this

Court to resolve disputed facts or review the evidentiary

record in detail. The question is whether the partypresentation principle, due process, and the Seventh

Amendment permit a court to grant dispositive relief

on a theory the parties never raised.

Finally, this case arises in a common procedural

posture: a dispositive ruling affirmed on a ground not

raised by the parties. Review in this case would allow

the Court to clarify the scope of the party-presentation

principle in a setting that recurs frequently in the civil

courts throughout the nation and does not depend on

unusual facts. For these reasons, this case provides a

clean and appropriate vehicle for resolving the important

and recurring question presented.

24

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

/s/ Dallin B. Holt

Counsel of Record

FRAZIER LAW PLLC

7702 E. Doubletree Ranch Rd.

Suite 300

Scottsdale, AZ 85258

(480) 691-0975

dholt@frazierlawpllc.net

Gregory G. McGill

Ryan G. McGill

MCGILL LAW FIRM

4421 North 75th Street, Ste. 101

Scottsdale, AZ 85251

(480) 970-6720

gregmcgill@mcgillazlaw.com

ryanmcgill@mcgillazlaw.com

Counsel for Petitioner

July 27, 2026