### IN THE SUPREME COURT OF IOWA
No. 22

– 0288 Submitted March 30, 2023

— Filed May 26 , 202 3
IN THE MATTER OF THE ESTATE OF RUTH C. BISIGNANO, Deceased. EXILE BREWING COMPANY, LLC, Appell ant ,
vs. ESTATE OF RUTH C. BISIGNANO, Appellee.

_____________________________________ IN THE MATTER OF THE ESTATE OF FRANK J. BISIGNANO, Deceased. EXILE BREWING COMPANY, LLC, Appellant, vs. ESTATE OF FRANK J. BISIGNANO , Appell ee . Appeal from the I owa District Court for Polk County, Craig E. Block , Judge. A business alleged to have misappropriat ed a decedent’s intellectual property appeals the probate court’s reopening of the decedent’s and decedent’s husband’s estate s to pursue the misappropriation claim ; the E states

cross
- appeal the denial of their request for attorney’s fees

. AFFIRMED.
McDermott , J., delivered the opinion of the court , in which all justices joined.2

Kristina J. Kamler (argued) and Robert S. Keith of Engles, Ketcham, Olson & Keith, P.C., Omaha, Nebraska , for appellant.
Sco tt M. Wadding (argued) , Matthew G. Sease, and Delaney J. Kozlowski of Sease & Wadding, Des Moines , for appellee s .3

McDERMOTT , Justice. The E states of Ruth Bisignano and her husband Frank Bisignano sued Exile Brewing Company based on the use of Ruth’s name and likeness in Exile’s promotion and sale of its popular beer called “Ruthie.” To enable the e states to pursue the se claims, Frank Bisignano’s nephew first filed petitions in the probate
court to reopen the e states , as both e states had long since closed

. The probate court granted both motions to reopen , and the e states filed the civil lawsuit against Exile

. Exile sought to intervene in the probate case , fil ing a motion to vacate the reopening orders. In this appeal, we must decide whether the probate court erred in denying Exile’s request to intervene in the probate case and close the Estates

. I. Ruth Bisignano a nd Exile’s “Ruthie” Beer . Ruth Bisignano

— “ Ruthie, ” as she was professionally known

— owned and operated a popular bar in Des Moines throughout the 1950s and ’ 60s called

“ Ruthie’s Lounge

. ” She was famously (or, to some, scandalously) known for her ability to serve beer by balancing two pint glasses on her ch est in a bar trick she referred to as the “well

- balanced glass of beer.” The trick earned her both
attention in newspapers across the country and a premium price on drinks

— reportedly charging about three times as much as other bars in town. It also earned her some legal trouble , although perhaps of the no
- such

- thing

- as
- bad

publicity variety. Ruth was criminally charged several times for performing her serving trick with allegations that included “indecent dress and behavior” and “indecent behavior and runni ng her lounge in a loud, boisterous manner with4

the juke box blaring.” And i n 1955, the IRS came after Ruth for unpaid taxes totaling $44,694 , alleging that her beer

- balancing trick qualified as
entertainment and made her bar subject to the tax on “ cabaret s . ” In 1971, she sold her bar and closed the door on her bartending and tavern

- operating days. In 2012, Exile Brewing Company (Exile) , taking Ruth and her contributions to the beer and restaurant industry as an inspiration, named one of its craft be ers “Ruthie” and used Ruth’s image performing her serving trick on bottles, cans, beer taps, and other paraphernalia. Today Ruthie is the best

- selling Iowa

- made beer in the state. Before it began selling the Ruthie beer, Exile searched for trademarks and p roducts sold under the name “Ruthie,” searched for pictures of Ruth, and searched for children, an estate, or a trust for her. Exile alleges that the search came up empty, so it began selling the beer using the name “Ruthie” and Ruth’s likeness. Exile applied for a federal trademark for “RUTHIE” in 2019, which was granted in 2021.
II. Reopening the Estates . When Ruth died intestate in 1993 , her husband Frank Bisignano served as the administrator of her e state. The list of assets on the final report and inventory for her e state didn’t include the name “Ruthie” or Ruth’s name and likeness as property. Ruth’s e state was closed in 1993

. Frank died intestate three years later . His niece, Andrea Huntsman, served as the administrator of Frank’s e state. The lis t of assets on the final report and inventory for his e state likewise didn’t include the name “Ruthie” or Ruth’s name and likeness as property. The final report listed Frank’s heirs as his three5

then

- living siblings: Barbara Hamand, Rose Medici, and Alfons o Bisignano. Frank’s estate was closed in 1999. Fred Huntsman is Frank Bisignano’s nephew and the son of Frank’s deceased sister Barbara Hamand. In March 2020, Huntsman filed a petition to reopen Frank’s e state , alleg ing that he “ hired an attorney to inve stigate and pursue potential claims against a corporation” that, if successful, would benefit Frank’s e state. The probate court promptly granted the motion to reopen Frank’s

e state and appointed Huntsman as administrator. In September 2020, Huntsman filed a petition to reopen Ruth’s e state on the same grounds

. The probate court promptly granted the motion to re open Ruth’s e state , too, and appointed Huntsman as administrator

. III. The Estates’ Civil Lawsuit and Exile’s Motion to Vacate and Close the Estates . In June 2020, Huntsman , as administrator of Frank’s e state , filed a law suit in Iowa district court against Exile alleging commo n l aw appropriation of Ruth’s name and likeness, appropriation of the commercial value of Ruth’s identity and infringement of the right of publicity, commo n l aw misappropriation of trade values, consumer fraud under Iowa Code chapter 714H, commo n l aw deceptive marketing, and commo n l aw trade and service mark infringement

. Exile moved to dismiss the lawsuit, arguing , among other things , that Frank’s

e state lacked standing , the court lacked jurisdiction, and a statute of limitations violation. The district court denied the motion in August 2020. Exile filed an answer and affirmative defenses to the petition a month later, and the litigation moved forward.6

Exile argued to the district court in the motion to dismiss proceedings that Ruth’s e state, not Frank’s, was the appropriate plaintiff in the civil action. The petition to reopen Ruth’s e state in probate court (in September 2020) soon followed. Frank’s e state then moved to add Ruth’s e state as a plaintiff in the civil case, which the district court granted. In June 2021, the e states moved for partial summary judgment on certain claims. Exile resisted and, in August , filed

a cross
- motion for summary judgment that the e states resisted. While those summary judgment motions were pending in the civil case, Exile filed a motion in the probate court to vacate, dismiss, and close both

e state s . Exile , describing itself as an “interested party” in the e states, argued that the probate court lacked jurisdiction to reopen the e states under Iowa Code section 633.489 , that Huntsman lacked standing to serve as the administrator , and that any intellec tual property rights that the e states could have in Ruth’s image or likeness had been waived. These arguments were identical to some of the arguments that Exile was making in the civil lawsuit. The e states resist ed , arguing that the probate court must strike Exile’s motion because it was not an interested party in the e states. The e states argued, in the alternative, that the probate cou rt should reject Exile’s arguments on the merits because the reopening orders complied with section 633.489 and there had been no waiver of Ruth’s intellectual property rights allowing Exile’s use. In November, t he probate court denied Exile’s motion. The probate court held that Exile had no right to intervene in the probate proceedings and instead was an interloper in the case . T he probate court thus struck Exile’s motion to7

vacate, dismiss, and close the e state s . The probate court further determined tha t

e ven if Exile could intervene, the potential claims against Exile described in Huntsman’s petition to reopen were “new property” that authorized reopening the e states under Iowa Code section 633.489. The probate court didn ’ t decide whether Ruth’s intellectual property passed to her heirs or into the public domain , specifically leaving the issue for resolution in the civil lawsuit . Exile filed a motion to reconsider, which the probate court denied. The probate court also denied the e states ’ a pplication for attorney ’s fees. In January 202 2 , the district court ruled on the summary judgment motions. It took no action on Exile’s standing and jurisdiction arguments, deferring instead to the probate court’s ruling that the e state s were properly
reop ened. The district court went on to deny both sides’ summary judgment
motions. Soon thereafter , the e states successfully moved to amend their petition in the civil lawsuit to replace their commo n l aw claim for trade and service mark infringement with a cla im for deceptive advertising and false designation of origin under the Lanham Act, 15 U.S.C. § 1125(a). In April 2022, Exile removed the civil lawsuit to federal court based on federal question jurisdiction. Exile appealed the probate court’s ruling . The e states cross

- appeal ed the probate court’s denial of their application for attorney ’s fees. We’ve consolidated Ruth’s and Frank’s probate cases for appeal based on the identical issues presented.8

IV. Exile’s Intervention in the Probate Estates . We begin wi th the probate court’s threshold determination that Exile is an interloper with no ability to challenge the e states’ reopening. As the probate court noted, the p robate c ode includes no provisions that address a party’s
intervention in a probate proceeding. But Iowa Code section 633.34 provides tha t

u nless otherwise stated, all actions triable in probate apply the Iowa Rules of Civil Procedure

. Rule 1.407 provides for two ways to interven e in a case : intervention as a matter of right and permissive intervention. Iowa R. Civ. P. 1.407(1), (2). The rule on i ntervention as of right ( as relevant here) states that “anyone shall be permitted to intervene in an action . . . [ w ] hen the applicant claims an interest relating to the prop erty or transaction which is the subject of the action” and “is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest” unless the
interest is otherwise adequately protecte d by another part y . I d. r. 1.407(1) ( b ) (emphasis added)

. The rule on p ermissive intervention (as relevant here) states that “anyone
may be permitted to intervene in an action . . . [w]hen an applicant’s claim or defense and the main action have a question of law or fact in common.” I d

.
r. 1.407(2)( b ) (emphasis added). The permissive intervention sub rule concludes with this : “ In exercising its discretion, the court shall consider whether the intervention will unduly delay or prejudice the adjudicati on of the rights of the original parties. ” Id. r. 1.407(2) ( unnumbered paragraph )

. A later subrule guides9

court s on its consideration of permissive intervention applications , stating that
court s shall consider “ and grant or deny the application as the circumstances require.” Id. r. 1.407(4).
In In re Estate of DeVoss , we noted th e confusion that surrounds the appellate standard of review from denials of intervention because of the two different types of intervent ion. 474 N.W.2d 539, 541 (Iowa 1991). In DeVoss , two heirs appealed the district court’s deni al of their attempt to intervene as of right in a probate case

. Id. at 542. We affirmed the district court, determining that the heirs’ interest “was too remote

. . . to entitle them to intervention.” Id. On the standard of review, w e remarked that m ost intervention appeals will “revolve around an evaluation of the ‘interest’ claimed by the party seeking to intervene,” and stated that review thus should be “on error , with some deference given to the district court’s discretion.” Id. at 541.
A. Intervention as of R ight . Exile argues that it was entitled to intervention as of right because it seeks to “defin [e] the property rights that Huntsman actually inherited through intestate succession” and to “ensur [e] that Huntsman is not granted, through the probate proceedings, right s that encroach upon the trademark rights that Exile was already vested with” throug h its use and registration of the “Ruthie” trademark. But neither ground establishes

— as required by the rule

— that Exile would be left “so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to prot ect that interest.” Iowa R. Civ. P.10

1.407(1)( b ). The disposition of the probate matter will not “impair or impede” Exile’s ability to protect the property interest that they assert. T he property rights dispute between the e state s and Exile is the subject of a separate civil lawsuit now pending in federal court. Exile is entitled to pursue

— and has been pursuing , for several years now

— its claims and defenses in the civil litigation to protect its alleged property interest

. The proba te court did not rul e on the merits of Exile’s property claims , leaving Exile free to address those claims in the civil lawsuit

. Further, Exile is ill

- suited to challenge the probate court’s appointment of
Huntsman as a special administrator of these e stat es . An “interested person” in probate is generally “one whose ‘interests are directly affected by a diminution of the [ estate ] assets.’ ” In re Est

. of Boyd , 634 N.W.2d 630, 638

– 39 (Iowa 2001) (alteration in original) (emphasis added) (quoting In re Est

. of Plumb , 129 N.W.2d 630, 632

– 33 ( Iowa 1964) )

. Exile makes no claim that it would suffer by a diminution of assets in the e state; indeed, the opposite is true since Exile argues it will suffer if the court doesn’t prevent an asset (the cause of action to enforce Ruth’s intellectual property rights ) from entering the e states. Exile is not an heir at law, a beneficiary under any testamentary instrument, a creditor of the e states or the decedents , or any other claimant seeking e state assets

. Rather, Exile’s role is merely that of a potential debtor to the e states if it’s held liable in the civil lawsuit for misappropriating Ruth’s name or likeness

. Cf. In re Troester’s Est. , 331 N.W.2d 123, 127 (Iowa 1983) (noting the district court’s determination “t hat appellants as possible debtors of the estate were not interested parties to the estate proceedings and could not intervene in the proceedings”). The probate11

court didn’t rule that Huntsman inherited Ruth’s intellectual property rights.
E xile is free to raise in the civil lawsuit whether there are any name, image, and likeness rights and whether any such rights are inheritable.
T hat Exile’s interest is only a potential one at this point is another strike against intervention. Contingent interests, we have said, “ are insufficient to allow
intervention by right. ” DeVoss , 474 N.W.2d at 542. Exile’s interest in the e states depends on its property interest in Ruth’s image and likeness, and that interest depends on the outcome of the trademark and civil litigation matters that are underway. We find no error in the district court’s determination that Exile failed to establish that it was an interested party entitled to intervent ion as of right.
B. Permissive I ntervention . Exile also argues that it was entitled to permissive intervention. We will afford a district court a relatively greater measure of deference in our review of a permissi ve intervention decision considering that the court “exercis[es] its discretion

” in deciding whether an applicant “ may be permitted to intervene” under the permissive intervention rule. See Iowa R. Civ. P. 1.407(2) (emphas e s added)

. As Judge Friendly once noted about the similarly

- worded federal rule , “[A] denial of permissive intervention has virtually never been reversed.” United States v. Hooker Chems

. & Plastics Corp. , 749 F.2d 968, 991 n.19 (2d Cir. 1984 ). In analyzing whether Exile’s “claim or defense” involves a common question of law or fact in the probate proceeding, Iowa R. Civ. P. 1.407(2)( b ), we return to the discussion of Exile’s role as potential debtor only and its lack of any interest in the se e states. The petition for estate reopening is an equitable12

action, wh ile claims for misappropriation of a person’s name and likeness and claims to quiet title in intellectual property are legal actions

. T he narrow scope of a petition to reopen an e state presents no overlapping issue with the resolution of a claim for misapp ropriation of a person’s name and likeness or to quiet title in intellectual property

. Stated simply, Exile cannot show that it “will gain or lose by the direct legal operation and effect of the judgment” to reopen the Estates.
DeVoss , 474 N.W.2d at 542 (q uoting Faircloth v. Mr. Bos

. Distiller Corp. , 245 So. 2d 240, 244 (Fla. 1970 ) , overruled in part on other grounds by Nat’l Distrib. Co. v. Off. of Comptroller , 523 So. 2d 156, 158 (Fla. 1988) ). Whether Exile gains or loses will be determined through the resolution of the claims in the civil lawsuit, not by the probate court’s order to reopen the e states. Again, Exile is free to raise in the civil lawsuit whether any name, image, and likeness rights exist ed or still exist an d, if so, whether those rights are inheritable.
I n considering applications for permissive intervention , the rule directs that courts “grant or deny the application as the circumstances require. ” Iowa
R. Civ. P. 1.407(4). The probate court found no circum stance that would require permitting Exile to intervene and, o n the contrary, determined that intervention would constitute outright interference by an interloper. See Cooper v. Erickson , 239 N.W. 87, 89 (Iowa 1931) (“What the intervener in fact does ask i s independent relief in what really amounts to an independent action. That does not constitute the intervener a party as such, but makes of him a mere interloper.”); Mass

. Bonding & Ins

. v. Novotny , 202 N.W. 588, 590 (Iowa 1925) (stating that a person with out a legal basis to intervene “is considered a mere13

‘interloper’ who acquires no rights by his unauthorized interference”). We find no error in the probate court ’s den ial of Exile’s request for permissive intervention. Because we affirm the district court ’s judgment on the threshold issue denying Exile ’s attempt to interven e in the matter and striking Exile’s motion to vacate, dismiss, and close the e states , we need not address the merits of the other issues raised in that motion

. V. The Estates’ Request for Attorney’s Fees . The e states cross

- appeal the probate court ’s denial of their request for attorney ’s fees

. A s a basis for their request , they recite Exile’s statement in the civil action that Ruth’s e state was the proper plaintiff to bring the claim , only to later move to vacate the order reopening Ruth’s e state after her estate was added as a plaintiff. The e states also argue that Exile pursues a frivolous en d r un of the district court’s summary judgment ruling by repackaging previously

- rejecte d arguments in this appeal. The e states ask us to enforce r ule 1.413, which permits an award of attorney’s fees as a sanction for filings “interposed for any improper purpose, such as to harass or cause an unnecessary delay or needless increase in the cost of litigation.” Iowa R. Civ. P. 1.413(1). The rule states that by signing a filing, the lawyer certifies “to the best of counsel’s knowledge, information, and belief, formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modificat ion, or reversal of existing law.” Id. Compliance with the rule is based on “an objective, not subjective, standard of reasonableness under the circumstances.” Barnhill v.14

Iowa Dist . C t

. , 765 N.W.2d 267, 272 (Iowa 2009). We thus review a district court’s d ecision regarding the imposition of sanctions under rule 1.413 for abuse of discretio n a nd , on review , will correct erroneous applications of the law

. Homeland Energy Sols

. , LLC v. Retterath , 938 N.W.2d 664, 684 (Iowa 2020 ). Imposing a fee

- shifting sanction is a rare exception to our general rule that losing litigants don’t pay the victor’s attorney’s fees. In re Guardianship of Radda , 955 N.W.2d 203, 21 4

– 1 5 (Iowa 2021)

. We consider a variety of factors in evaluating compliance with th e rule , including the time available to investigate and research facts, the complexity of factual and legal issues, the clarity or ambiguity of existing law, and the plausibility of the legal positions asserted. Retterath , 938 N.W.2d at 710. A rguments “mad e in good faith” weigh against a sanction. Id. In In re Guardianship of Radda , for instance, we determined that even though a party presented questions of first impression that lacked merit, th e arguments weren’t frivolous within the meaning of rule 1.413( 1). 955 N.W.2d at 215. In rejecting the e states’ request to impose a fee

- shifting sanction against Exile, t he probate court noted that Exile supported its arguments with statutes, caselaw, and facts, an d found nothing facetious or frivolous about Exile’s motion

. The primary purpose of sanctions under rule 1.413(1) is to deter frivolous litigation , not to compensate the winning side

. First Am. Bank v. Fobian Farms,
Inc. , 906 N.W.2d 736, 745 (Iowa 2018)

. Exile , in the probate court’s view , had a

reas onable basis for the arguments it presented , and we agree

. Exile engaged in no misconduct warranting a sanction , and w e find no error in the probate court ’s refusal to sanction Exile with a fee

- shifting award in this case

.15

VI. Conclusion . Our holding in th is appeal rests exclusively on the probate court’s decision to reject Exile’s attempt to intervene and to strike Exile’s motion to vacate, dismiss, and close . W e advance no views and take no position on the existence or inheritability of Ruth’s name, image, and likeness rights . Exile ’s only connection to the probate proceedings is as a potential debtor to the e states. We will not turn the probate court’s simple reopening of the e states into a second litigation over whether or to whom the potential debt is owed where Exile has no other connection to the e state s . Exile has the opportunity to raise its defenses in the civil lawsuit to determine whether it is in fact a debtor. We affirm the probate court’s grant of the e states ’ motion to strike Exile’s
mot ion to dismiss, vacate, and close, and affirm the related denial of Exile’s motion to intervene. We also affirm the probate court’s denial of the e states’ request for attorney’s fees.
AFFIRMED.