                IN THE SUPREME COURT OF IOWA
                              No. 17–1466

                        Filed February 22, 2019


TODD MORRIS,

      Appellant,

vs.

STEFFES GROUP, INC.,

      Appellee.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Marion County, Martha L.

Mertz, Judge.



      Plaintiff seeks further review of a decision affirming an adverse

summary judgment.     DECISION OF COURT OF APPEALS VACATED;

DISTRICT COURT JUDGMENT REVERSED AND REMANDED.


      Billy J. Mallory and Allison M. Steuterman of Brick Gentry, P.C.,

West Des Moines, for appellant.



      Collin M. Davison of Heiny, McManigal, Duffy, Stambaugh &

Anderson, P.L.C., Mason City, for appellee.
                                            2

APPEL, Justice.

       In this case, we consider whether the district court correctly held

that a seller of auction services of certain machinery is entitled to summary

judgment on a claim brought by a buyer of those services under the Iowa

Door-to-Door Sales Act (DDSA), Iowa Code chapter 555A (2017).                            In

addition, we must consider whether the district court erred in dismissing

without prejudice a declaratory action count of the petition challenging,

among other things, the underlying sales contract because of an invalid

execution by a third party and because of fraud in the inducement.

       After the district court dismissed both claims, the buyer appealed.

We transferred the case to the court of appeals. The court of appeals

affirmed the district court.

       We granted further review. For the reasons expressed below, we

vacate the decision of the court of appeals. We reverse the judgment of

the district court and remand the case to the district court for further

proceedings consistent with this opinion.

       I. Factual and Procedural Background.

       A. Factual Background. Because this case involves an appeal of a

district court order granting a motion for summary judgment, we review

the facts in the light most favorable to the nonmoving party. Crippen v.

City of Cedar Rapids, 618 N.W.2d 562, 565 (Iowa 2000). The nonmoving

party offered evidence that showed that Todd Morris attended an

agricultural trade show with his wife, Lacey Morris. 1 While at the trade

show, they visited a friend’s booth. Steffes Group, Inc., which provides

services that include farm equipment auctions and appraisals, had a booth

next to the friend’s booth.

       1To avoid confusion, in this opinion Todd Morris will be referred to as Morris,
while his wife will be referred to as Lacey.
                                    3

      While Lacey was talking to her friend, Morris spoke with Duane

Norton, a Steffes Group representative. Morris owned some equipment,

including a tractor, which he claimed he used for playing around his farm,

hunting purposes, food plots, and maintaining his house and property.

Morris and Norton discussed the possibility of auctioning some of Morris’s

equipment. Norton told Morris there was an upcoming auction suitable

for Morris’s equipment, but they would have to act quickly to get his

equipment into the auction.     Morris left his contact information with

Norton.

      Shortly thereafter, Norton called Morris to find out when he could

come to the Morris residence to view the equipment. Morris explained that

he would be out of town. Norton responded that he only needed to see the

equipment. Morris did not object to Norton visiting his residence to view

the equipment while he was absent but informed Norton that any of the

business associated with the equipment should be with himself and not

his wife. Morris then gave Norton Lacey’s cell phone number. Norton and

Lacey arranged a time for Norton to come to the Morris residence.

      When Norton arrived at the residence, Lacey took Norton to the

garage to view the equipment. Norton jotted down some notes about the

equipment and associated identification numbers. Afterwards, Norton and

Lacey went into the residence and sat in the kitchen, where Norton began

filling out a document. Norton listed on the document the various pieces

of equipment that Lacey had shown him and asked her to sign the

document.

      At some point while they were in the kitchen, Lacey and Norton each

spoke with Morris by telephone. According to Morris and Lacey, Norton

told each of them that the document was merely a nonbinding “asset list”

to get the equipment into the auction. Norton also reiterated the necessity
                                    4

of moving quickly before the auction. During his telephone conversation

with Norton, Morris told Norton there was a lien on one of the pieces of

equipment—a tractor—and he was unwilling to part with the tractor for

less than a certain amount. Since Morris had been unable to get in touch

with his banker, they agreed to identify this amount later. Morris told

Lacey that she could sign the document in his name, and she did so.

      In fact, however, the document was a consignment contract. The

contract provided that Morris employed Steffes Group to sell the identified

equipment at auction and that the equipment “may not be sold or

withdrawn prior to the auction except by mutual agreement.” Under the

contract, all property was to be sold for cash to the highest bidder. The

contract does not state that Morris could cancel the contract and Norton

did not provide a notice of cancellation form.    Norton also did not tell

Morris or Lacey that they could cancel the contract. The equipment to be

sold pursuant to the contract included a tractor, a rototiller, a mower, a

fertilizer spreader, a planter, and various other equipment.

      Over the next few weeks before the auction, Morris and Norton

communicated several times. At one point, Morris text messaged Norton

asking if he would be able to approve or deny the sale price during the

auction. Norton responded by text message that they could protect the

sale price by putting a reserve on the tractor ahead of time. The two then

spoke by phone.    Norton explained Steffes Group’s reserve process to

Morris, informing him that Steffes Group would watch the bidding and if

the reserve was not going to be met then Steffes Group would bid the

reserve and return the tractor to Morris. With that understanding, Morris

asked Norton to put a reserve on the tractor for $20,000. Subsequently,

on the day before the auction, the parties again confirmed that the reserve

on the tractor was $20,000.
                                     5

      At the auction, the tractor sold for $14,500. Lacey attended the

auction. The tractor’s sale price concerned her because it was less than

the reserve amount. She phoned Morris, who was at a job site. Morris

told her not to worry because Norton had assured him that if the tractor

was not going to sell for at least $20,000 it would be pulled from the

auction and returned to Morris.

      Morris phoned Norton numerous times later that day but was

unable to get in touch with him. The next day, Morris went to the auction

site to get his tractor. The tractor was gone. Morris found a field hand at

the site and, using the field hand’s phone, was able to get in touch with

Norton. Norton told Morris that he would “make this right” and offered to

reduce the commission from some of the other items that sold. Morris

refused as these amounts would be significantly less than the difference

between the tractor’s reserve and the sale price. Morris demanded the

return of the tractor, and Norton told him that he would not get it.

      B. District Court Proceedings. Morris filed a two-count petition

in the Marion County District Court. In count I, Morris claimed a violation

of the DDSA.    Morris alleged that a Steffes Group sales representative

personally solicited the transaction at his personal residence; that the

sales representative did not furnish the plaintiff with a notice of

cancellation as required by Iowa Code section 555A.3; that the sales

representative did not inform him in any manner of the right to cancel or

perform the other duties of a seller under Iowa Code section 554A.4; that

he had provided notice of cancellation of the transaction on multiple

occasions; and that he had demanded, to no avail, the return of his

property and any payments made under the transaction. Morris alleged

that a violation of the DDSA is also a violation of the Iowa Consumer
                                      6

Frauds Act, under Iowa Code chapter 714. Morris sought injunctive relief,

compensatory damages, interest, and attorney fees.

      In count II, Morris sought a declaratory judgment concerning the

parties’ rights.   In addition to the facts alleged under count I, Morris

alleged that he did not execute the written agreement and that the written

agreement was induced by fraud. He further asserted that he sent a notice

of cancellation to the defendant but that the defendant refused to cancel

the transaction or take other action as a result of the cancellation. Morris

asserted that a controversy existed between the parties regarding their

rights and sought a declaration that the alleged agreement was void, that

he provided a valid cancellation of the contract, and that he rightly

cancelled the transaction.     Although styled as seeking a declaratory

judgment, Morris sought various other remedies under count II, including

the return of all property and a judgment for compensatory damages,

interest, costs, and attorney fees.

      In its answer to count I, Steffes Group denied all of Morris’s

allegations claiming that the transaction was subject to the DDSA and its

various cancellation and notice provisions.     Steffes Group specifically

denied that its sales representative personally solicited the transaction at

Morris’s residence.

      In its answer to count II, Steffes Group incorporated its denials with

respect to the DDSA.      Steffes Group also denied allegations that the

execution of the written contract was invalid and that the written contract

was induced by fraud.

      After a round of discovery, Morris moved for summary judgment,

asserting that the transaction was covered by the DDSA and there was no

genuine issue of material fact that the defendant failed to comply with the

notice and cancellation provisions the DDSA. In response, Steffes Group
                                     7

resisted and filed its own motion for summary judgment, claiming that on

the undisputed facts it was entitled to judgment as a matter of law.

       In a brief order, the district court granted summary judgment in

favor of Steffes Group. The district court stated that the “fighting issue”

before the court was whether the DDSA applies to the facts of the case.

The district court determined that the DDSA “does not apply to a contract

for auction services, such as here.” Based on that conclusion, the district

court dismissed Morris’s petition “without prejudice as to other theories of

liability” and taxed costs to the plaintiff. Although not explicitly stated,

the “other theories of liability” apparently referred to the non-DDSA claims

in count II of the petition.

       Morris appealed. We transferred the case to the court of appeals,

which affirmed the district court. The court of appeals held that the DDSA

does not apply to these facts and Steffes Group did not conduct a door-to-

door sale of consumer goods or services. Citing Windus v. Great Plains

Gas, 254 Iowa 114, 124, 116 N.W.2d 410, 415 (1962), the court of appeals

also held that the district court did not err in dismissing count II of the

petition without prejudice.

       Morris filed an application for further review.     We granted the

application. For the reasons stated below, we now vacate the court of

appeals and reverse the district court.

       II. Standard of Review.

       We review summary judgments for correction of errors at law.

Banwart v. 50th St. Sports, L.L.C., 910 N.W.2d 540, 544 (Iowa 2018). In

ruling on a motion for summary judgment, the court must look at the facts

in a light most favorable to the nonmoving party. Crippen, 618 N.W.2d at

565.
                                        8

      Summary judgment is appropriate

      if the pleadings, depositions, answers to interrogatories, and
      admissions on file, together with the affidavits, if any, show
      that there is no genuine issue as to any material fact and that
      the moving party is entitled to a judgment as a matter of law.

Iowa R. Civ. P. 1.981(3); see Banwart, 910 N.W.2d at 544. A genuine issue

of fact exists if reasonable minds can differ on how an issue should be

resolved. Banwart, 910 N.W.2d at 544. “A fact is material when it might

affect the outcome of a lawsuit.” Id.

      “Even if the facts are undisputed, summary judgment is not proper
if reasonable minds could draw different inferences from them and thereby

reach different conclusions.” Id. at 544–45 (quoting Clinkscales v. Nelson

Sec., Inc., 697 N.W.2d 836, 841 (Iowa 2005)). The court must consider on

behalf of the nonmoving party every legitimate inference that can be

reasonably deduced from the record. Crippen, 618 N.W.2d at 565. “An

inference is legitimate if it is ‘rational, reasonable, and otherwise

permissible under the governing substantive law.’ ” Smith v. Shagnasty’s

Inc., 688 N.W.2d 67, 71 (Iowa 2004) (quoting McIlravy v. N. River Ins., 653

N.W.2d 323, 328 (Iowa 2002)).       “[C]ircumstantial evidence is equally

probative as direct evidence.” Banwart, 910 N.W.2d at 545.

      The burden of showing undisputed facts entitling the moving party

to summary judgment rests with the moving party.         Swainston v. Am.

Family Mut. Ins., 774 N.W.2d 478, 481 (Iowa 2009). The burden of proof

remains with the moving party at all times. See Interstate Power Co. v. Ins.

Co. of N. Am., 603 N.W.2d 751, 756 (Iowa 1999). A moving party cannot

shift the burden to the other party through a conclusory motion for

summary judgment not supported by undisputed facts. See id.; Midwest

Mgmt. Corp. v. Stephens, 291 N.W.2d 896, 900 (Iowa 1980); Am. Tel. & Tel.

Co. v. Dubuque Commc’ns Corp., 231 N.W.2d 12, 14–15 (Iowa 1975).
                                       9

      III. Discussion.

      A. Overview of Door-to-Door Sales Act. The DDSA is contained

in Iowa Code chapter 555A. The Act generally applies to a “seller” who

engages in a “door-to-door sale” of “consumer goods or services.” Iowa

Code § 555A.1(3)(a). If a transaction is within the scope of the DDSA, the

purchaser is entitled to notice and cancellation rights. See id. §§ 555A.2–

.4. If a contract subject to the DDSA is rescinded or the seller fails to

provide the buyer with a copy of the contract containing certain statutorily

required terms, the contract is void. Id. § 555A.5. A violation of the DDSA

is also a violation of the Iowa Consumer Fraud Act, Iowa Code section

714.16(2)(a).   Id. § 555A.6(2).    Finally, any seller who violates the

provisions of the statute is guilty of a simple misdemeanor. Id. § 555A.6(1).

      The DDSA contains several definitions. A “seller” is defined as “any

person engaged in the door-to-door sale of consumer goods or services.”

Id. § 555A.1(6). The scope of the term “seller” depends upon the meaning

of two other concepts, namely door-to-door sale and consumer goods or

services.

      The DDSA contains a definition of “door-to-door sale.” Under the

DDSA, a door-to-door sale is

      a sale, lease, or rental of consumer goods or services . . . in
      which the seller or the seller’s representative personally
      solicits the sale, including those in response to or following an
      invitation by the buyer, and the buyer’s agreement or offer to
      purchase is made at a place other than the place of business of
      the seller.
Id. § 555A.1(3)(a) (emphasis added).
      The DDSA also contains a definition of “consumer goods or services.”
Under the DDSA, consumer goods or services are “goods or services
purchased, leased, or rented primarily for personal, family, or household
purposes.” Id. § 555A.1(2) (emphasis added).
                                    10

      B. Positions of the Parties. Morris argues that the district court

erred in granting judgment on his claim under the DDSA and erred in

dismissing the entirety of his petition. Morris suggests that the statutory

requirement that the transaction involve consumer goods or services is

satisfied because although the items at issue can be considered

agricultural equipment he used them primarily for personal, family, or

household purposes.     He emphasizes that he used the equipment for

playing around his farm, hunting purposes, food plots, and maintaining

his house and property. He also contends that Norton personally solicited

consignment services and the sale of his equipment in the kitchen of his

residence. Finally, he asserts there is no genuine issue of material fact

that the DDSA was breached. As such, despite the title of chapter 555A,

Morris argues that the transaction and Steffes Group’s conduct falls within

its provisions and that the district court erred in concluding otherwise.

      In addition, Morris contends the district court erred in dismissing

the entirety of his petition. He argues Steffes Group had not moved for

summary judgment on his declaratory judgment claim and the district

court did not find this claim was unsustainable under any set of facts

provable under the petition.

      Steffes Group responds that the determinative question is whether

the goods or services it sold to Morris were “consumer” in nature. The only

facts material to that analysis, Steffes Group continues, are the location

of the sale of goods or services by Steffes Group to Morris and the nature

of the products or services to be sold. Thus, Steffes Group asserts that

this case does not depend upon the circumstances surrounding the

execution of the contract between the parties and whether a reserve was

placed upon the tractor. In addition, Steffes Group contends that Morris’s

use of the equipment is irrelevant. Rather, according to Steffes Group,
                                     11

answering the determinative question requires a focus on what was to be

sold by Steffes Group.

      Steffes Group thus claims that it is entitled to summary judgment

because none of its services sold to Morris were consumer in nature. It

emphasizes that it is in the business of selling agriculture-related services.

This is evidenced, Steffes Group says, by the fact that the parties initially

met at the farming trade show.

      As to Morris’s argument that his petition should not have been

dismissed in its entirety, Steffes Group contends the claim is one of equity

and the trial court did not err in exercising its equitable powers in

dismissing the entire petition without prejudice.

      C. Discussion.

      1. Personally Solicits. In order to fall within the scope of the DDSA,

a transaction must be one where the seller “personally solicits” “a sale,

lease, or rental of consumer goods or services,” and “the buyer’s agreement

or offer to purchase is made at a place other than the place of business of

the seller.” Iowa Code § 555A.1(3)(a). In his papers filed before the district

court and in his brief on appeal, Morris maintains that the solicitation

requirement was met when Norton presented the written consignment

contract to his wife in their home and obtained her signature on it. The

district court did not expressly rule on the solicitation question, but

instead determined that the Act did not apply “to a contract for auction

services, such as here.”

      In its appellate briefing, Steffes Group does not rely upon the

solicitation requirement to uphold the district court order granting

summary judgment on Morris’s DDSA claim. Before the district court,

Steffes Group argued that its representative did not solicit the sale on the

grounds that Morris approached its representative at the trade show and
                                      12

that Morris requested the representative visit the Morris residence. Steffes

Group abandoned these arguments in its appellate brief, declaring that

“[t]he answer to the question of whether Iowa Code Chapter 555A applies

does not depend upon the circumstances surrounding the execution of a

contract between the parties.” Moreover, while Steffes Group notes that

the facts material to the court’s analysis relate to the “location of the sale

of goods or services by Steffes to the Appellant,” no argument is presented

that Steffes Group’s representative did not solicit the sale or that the

buyer’s agreement or offer to purchase did not occur at a place “other than

the place of business of the seller” as required by the DDSA. Iowa Code

§ 555A.1(3)(a).

      In several cases, we have held under similar circumstances that the

appellee waives the unbriefed issues. See State v. Seering, 701 N.W.2d

655, 61–62 (Iowa 2005) (holding that appellee waived issues on appeal

even though issues were raised in and decided by district court because

appellee failed to present arguments in appellate brief); Parkhurst v. White,

254 Iowa 477, 481, 118 N.W.2d 47, 49 (1962) (holding that appellee waived

issue not argued on appeal); Am. Mut. Liab. Ins. v. State Auto. Ins., 246

Iowa 1294, 1302–03, 72 N.W.2d 88, 93 (1955) (declining to express opinion

on issue not raised by appellees).

      A notable case to the contrary is King v. State, 818 N.W.2d 1 (Iowa

2012). In King, the district court dismissed the plaintiff’s petition on the

ground that the questions posed were nonjusticeable political questions.

Id. at 8. On appeal, the state as appellee only defended the dismissal on

the ground of nonjusticeability. Id. at 11. It did not defend on alternative

constitutional grounds that were presented to the district court but

decided adversely to the state. Id.
                                             13

       On appeal, the King court considered constitutional arguments not

raised by the state on appeal. See id. at 11–12. In doing so, the King court

noted that the constitutional issues were extensively briefed below. Id.

The King court further noted that the district court had already ruled

adversely to the state on the constitutional issues. Id. As a result, a

remand to the district court to consider issues it had already decided

seemed pointless. See id. In light of the posture, the King court elected to

consider the constitutional issues not raised in the appellee’s brief. See

id.   The King court characterized the appellate waiver issue as one

involving the discretion of the court. Id.

       Unlike King, the parties’ briefing below on the issue is minimal.

Further, the district court did not rule on the solicitation issue. On the

strength of our precedent, and upon the factors that distinguish the case

from King, we consider the solicitation issue waived. 2

       2. Consumer goods or services.               The parties do not dispute that

Norton, as a representative of Steffes Group, did not give cancellation

information to Morris or Lacey that would be required if the DDSA applies

         2In any case, under the DDSA, the fact that a purchaser initiated conversations

about a potential transaction does not necessarily take it outside the scope of the statute.
The legislature expressly provided that door-to-door sales include situations where “the
seller or the seller’s representative personally solicits the sale, including those in response
to or following an invitation by the buyer.” Iowa Code § 555A.1(3)(a); see also Weatherall
Aluminum Prods. Co. v. Scott, 139 Cal. Rptr. 329, 331 (Ct. App. 1977) (“[T]he phrase ‘home
solicitation’ in the statute focuses not on who initiated the contact between buyer and
seller, but on where the contract was made.”); Hollywood Decorators, Inc. v. Lancet, 461
N.Y.S.2d 955, 956 (Sup. Ct. 1983) (holding that a transaction came within state door-to-
door sales act where homeowner called interior decorator in response to advertisement
but principal met with homeowners at their residence and executed contract at that
location).
        Further, it makes no difference whether a solicitation occurs at a residence or
another location so long as “the buyer’s agreement or offer to purchase is made at a place
other than the place of business of the seller.” Iowa Code § 555A.1(3)(a). In its statement
of undisputed facts in support of its motion for summary judgment, Steffes Group did
not assert that the trade show where representatives of the Steffes Group originally made
contact with Morris was “the place of business of the seller.”
                                     14

to the transaction.     Similarly, the parties do not dispute that the

consignment contract fails to state that Morris could cancel the

transaction at any time within three business days, as required for

contracts within the ambit of the DDSA. Instead, the dispute before us

centers on whether the DDSA applies to the goods or services involved in

the parties’ transaction.

      Clearly, the application of the statute depends upon the primary

purpose of the goods or services sold. But from whose perspective is the

purpose of the goods or services determined? Steffes Group argues that

the question of primary purpose should be determined from the

perspective of the seller. In its affidavits in support of summary judgment,

Steffes Group asserts that it is in the business of auctioning agricultural

equipment, not consumer goods.

      Morris asserts, however, that under the DDSA, the primary purpose

of the transaction should be determined from the perspective of the buyer.

Morris notes that the equipment he wanted to sell was used by him

primarily for personal use and not for business purposes. As a result, he

argues that the transaction is within the scope of the DDSA.

      In order to answer the question, we begin with the language of the

DDSA. For starters, it is important to note that the DDSA does not utilize

a categorical approach to the term “consumer goods or services.” See Iowa

Code § 555A.1(2). The DDSA does not provide a laundry list of inclusion

or exclusion. See id. Instead, consumer goods or services are defined as

“goods or services purchased, leased, or rented primarily for personal,

family, or household purposes.” Id.

      As a result, a transaction involving goods or services is not drawn

within the statute because of the objective quality or nature of the goods

or services. There is no objective limitation on the term “goods or services”
                                    15

outside their purpose or use.    Goods may be big or small, durable or

perishable, and expensive or cheap. Likewise, services may be short-term

or long-term, extensive or minimal, and involve sophisticated expertise or

none at all. Nothing in the statute categorically declares any goods or

services outside the scope of the statute based on their inherent quality.

Instead, the legislature utilized an approach based not on the objective

nature of the goods or services but solely upon the primary purpose of the

goods or services involved in the transaction. See id.

      Since the important determinant under the DDSA is primary

purpose, the next question is how one goes about determining the purpose

of a transaction involving goods or services. We note that the legislature

used the phrase “goods or services purchased” for personal use, not “goods

or services sold” for personal use. Id. (emphasis added). Ordinarily, of

course, it is the buyer that purchases the goods or services. By using the

term “purchased” in the definition of consumer goods or services covered

by the Act, the legislature intended the focus of the DDSA to be on the

intended use of the goods or services by the buyer, not the seller.

      This approach to interpreting the statute makes sense.          The

limitation of door-to-door sales protection to broadly defined consumer

goods or services transactions reflects an intent to exclude transactions

motivated by business purposes. See Byron D. Sher, The “Cooling-Off”

Period in Door-to-Door Sales, 15 UCLA L. Rev. 717, 754–56 (1968). The

exclusion of such transactions is based on the assumption that those

motivated by business purposes would be better able to protect themselves

against high-pressure sales tactics than other purchasers. See id. With

respect to nonbusiness purchases of goods or services, the statutory

protections of the DDSA are available.
                                    16

      There is no authority in Iowa dealing with the scope of the DDSA

definition of “consumer goods or services.”          There are, however,

nonbinding cases from other jurisdictions that illuminate the question.

For example, in one unreported case, a company that ordinarily sells

telephone systems to businesses came within the ambit of a local door-to-

door sales act when it made a sale to a residential customer for use in his

home, even though the salesperson and buyer began their relationship

when the salesperson asked the buyer at his place of business whether he

would like the telephone system for his business. N.E. Leasing Servs., Inc.

v. Barbieri, No. 27 64 80, 1990 WL 289535, at *1–3 (Conn. Super. Ct. May

7, 1990). In this case, the focus of the inquiry regarding the purpose of

the transaction was based upon the perspective of the buyer, not the seller.

See id.

      Another instructive case is Sanford v. National Association for the

Self-Employed, Inc., 640 F. Supp. 2d 82, 89–91 (D. Me. 2009). In Sanford,

the plaintiff claimed that the purchase of a membership in an association

for self-employed business people amounted to a purchase “primarily for

personal, family, or household purposes” under two Maine consumer

protection statutes. Id. at 89–90. The district court rejected the claim

related to the purchase of membership in the association, noting that

plaintiffs failed to present a factual basis to infer that the memberships

were personal in nature. Id. at 90. Yet, the district court found that the

purchase of discount pharmacy cards pursuant to that membership was

primarily related to required statutory purposes because it could be

reasonably inferred that the plaintiffs, each of whom has a wife and minor

children, purchased the cards primarily for the “personal, family, or

household purposes.” Id. at 90–91. The clear focus in Sanford is primary

use of the goods or services from the perspective of the buyer. See id.
                                    17

      There is a line of cases from other states involving home

improvement goods and services that offers insight into the problem of

primary purpose under the DDSA. This line of cases teaches that goods

and services as diverse as landscaping services and swimming pools can

be primarily for “personal, family, or household purpose” under local door-

to-door sales provisions.   Donaher v. Porcaro, 715 N.E.2d 464, 466–67

(Mass. App. Ct. 1999) (landscaping services); Donnelly v. Mustang Pools,

Inc., 374 N.Y.S.2d 967, 970 (Sup. Ct. 1975) (swimming pool).

      It is not unusual for the application of a consumer statute to depend

upon the nature of a buyer’s use of goods or services. Under the Federal

Truth in Lending Act (TILA), a consumer credit transaction is one in which

“the money, property, or services which are the subject of the transaction

are primarily for personal, family, or household purposes.” See 15 U.S.C.

§ 1602(i) (2012). In considering the question of statutory coverage of a

particular transaction, the focus in TILA cases is not on the business of

the lending institution, or the views of the lender, but on the borrower’s

purpose in obtaining the loan.     St. Hill v. Tribeca Lending Corp., 403

F. App’x 717, 720–21 (3d Cir. 2010) (finding that primary purpose of loan

was for business even though part of the loan amounts were used for

personal purposes); Gombosi v. Carteret Mortg. Corp., 894 F. Supp. 176,

180–81 (E.D. Pa. 1995) (same).

      We note, unlike other statutes, our DDSA does not exclude certain

kinds of agricultural goods or services from the statute. This contrasts

sharply with other states’ door-to-door or consumer statutes in existence

at the time our statute came into force, as some such statutes expressly

excluded sales of farm equipment. See Beaufort J.B. Clarke, Comment,

Home Solicitation Sales—The Legislative Response to a “Cooling-Off” Period,

24 S.C. L. Rev. 880, 887, 892 (1972) (noting exclusions in Maryland and
                                     18

Virginia); see also Munk v. Fed. Land Bank of Wichita, 791 F.2d 130, 131–

32 (10th Cir. 1986) (per curiam) (citing 15 U.S.C. § 1603(5) (Supp. IV

1974)) (observing that the Federal TILA expressly exempted certain

transactions primarily for agricultural purposes from those that are

primarily for personal, family, or household purposes). When the sale of

a particular type of goods or services is not explicitly excluded from the

scope of a consumer statute like the DDSA, a transaction involving goods

or services is within the scope of the statute provided other statutory

requisites are met. See, e.g., R. Bauer & Sons Roofing & Siding, Inc. v.

Kinderman, 613 N.E.2d 1083, 1086–87 (Ohio Ct. App. 1992) (noting home

improvement products are not excluded from the statutory definition of

“consumer goods or services”).

      Under the above analysis, it is clear that the district court erred

when it granted Steffes Group summary judgment on the DDSA claim. In

its motion for summary judgment, Steffes Group made no claim and

presented no evidence that Morris’s purpose in purchasing the auction

services was not “primarily for personal, family, or household purposes.”

As a result, Steffes Group was not entitled to summary judgment.

      3. Other claims. Having rejected the application of the DDSA, the

district court dismissed count II of the plaintiff’s petition without

prejudice.   As noted above, count II has allegations beyond the DDSA

involving the execution of the contract in this case and allegations of fraud.

      Steffes Group’s motion for summary judgment before the district

court generally claims that there are no genuine issues of material fact. It

does not distinguish between count I and count II of the plaintiff’s petition.

In its brief in support of the motion for summary judgment before the

district court, Steffes Group focuses on issues under the DDSA but does

not expressly attack the legal sufficiency of the allegations in count II or
                                       19

present any undisputed facts related to the claims of invalid execution or

fraud.

         On appeal, Steffes Group emphasizes that count II contains

elements of legal and equitable claims.        Perhaps so.   This contention,

however, was not presented to the district court. In any event, our rules

of civil procedure specifically permit the joining of legal and equitable

claims. Iowa Rs. Civ. P. 1.231, .243. In cases involving both legal and

equitable claims, the jury may decide the facts regarding legal questions

and the bench can pass on the equitable claims. See Beacon Theatres, Inc.

v. Westover, 359 U.S. 500, 508, 79 S. Ct. 948, 955 (1959). It may be true,

as the court of appeals pointed out, that the district court’s dismissal

without prejudice leaves the parties as if no action had been instituted,

Windus, 254 Iowa at 124, 116 N.W.2d at 415, but this principle does not

provide a substantive basis for the dismissal of count II, even without

prejudice. Based on the record before the district court and the arguments

presented to it, the district court erred in dismissing count II of the

petition.

         IV. Conclusion.

         For the above reasons, the decision of the court of appeals is vacated

and the judgment of the district court is reversed and the case remanded.

         DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

JUDGMENT REVERSED AND REMANDED.
