IN THE SUPREME COURT OF IOWA

No. 22–0288

Submitted March 30, 2023—Filed May 26, 2023

IN THE MATTER OF THE ESTATE OF RUTH C. BISIGNANO, Deceased.

EXILE BREWING COMPANY, LLC,

Appellant,

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,

Appellee.

Appeal from the Iowa District Court for Polk County, Craig E. Block, Judge.

A business alleged to have misappropriated a decedent’s intellectual 

property appeals the probate court’s reopening of the decedent’s and decedent’s 

husband’s estates to pursue the misappropriation claim; the Estates 

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.
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Kristina J. Kamler (argued) and Robert S. Keith of Engles, Ketcham, Olson 

& Keith, P.C., Omaha, Nebraska, for appellant.

Scott M. Wadding (argued), Matthew G. Sease, and Delaney J. Kozlowski 

of Sease & Wadding, Des Moines, for appellees.
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McDERMOTT, Justice.

The Estates 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 estates to 

pursue these claims, Frank Bisignano’s nephew first filed petitions in the probate 

court to reopen the estates, as both estates had long since closed. The probate 

court granted both motions to reopen, and the estates filed the civil lawsuit 

against Exile. Exile sought to intervene in the probate case, filing 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 and 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 chest 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-badpublicity variety. Ruth was criminally charged several times for performing her 

serving trick with allegations that included “indecent dress and behavior” and

“indecent behavior and running her lounge in a loud, boisterous manner with 
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the juke box blaring.” And in 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 “cabarets.” 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 beers “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 products 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 estate. The list of assets on the final report and 

inventory for her estate didn’t include the name “Ruthie” or Ruth’s name and 

likeness as property. Ruth’s estate was closed in 1993. 

Frank died intestate three years later. His niece, Andrea Huntsman, served 

as the administrator of Frank’s estate. The list of assets on the final report and 

inventory for his estate likewise didn’t include the name “Ruthie” or Ruth’s name 

and likeness as property. The final report listed Frank’s heirs as his three 
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then-living siblings: Barbara Hamand, Rose Medici, and Alfonso 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 estate, alleging that he “hired an attorney to investigate and 

pursue potential claims against a corporation” that, if successful, would benefit 

Frank’s estate. The probate court promptly granted the motion to reopen Frank’s 

estate and appointed Huntsman as administrator. In September 2020, 

Huntsman filed a petition to reopen Ruth’s estate on the same grounds. The 

probate court promptly granted the motion to reopen Ruth’s estate, 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 estate, filed a 

lawsuit in Iowa district court against Exile alleging common law appropriation of 

Ruth’s name and likeness, appropriation of the commercial value of Ruth’s 

identity and infringement of the right of publicity, common law misappropriation 

of trade values, consumer fraud under Iowa Code chapter 714H, common law 

deceptive marketing, and common law trade and service mark infringement.

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

estate 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.
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Exile argued to the district court in the motion to dismiss proceedings that 

Ruth’s estate, not Frank’s, was the appropriate plaintiff in the civil action. The 

petition to reopen Ruth’s estate in probate court (in September 2020) soon 

followed. Frank’s estate then moved to add Ruth’s estate as a plaintiff in the civil 

case, which the district court granted. In June 2021, the estates moved for 

partial summary judgment on certain claims. Exile resisted and, in August, filed 

a cross-motion for summary judgment that the estates 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 

estates. Exile, describing itself as an “interested party” in the estates, argued 

that the probate court lacked jurisdiction to reopen the estates under Iowa Code 

section 633.489, that Huntsman lacked standing to serve as the administrator, 

and that any intellectual property rights that the estates 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 estates resisted, 

arguing that the probate court must strike Exile’s motion because it was not an 

interested party in the estates. The estates argued, in the alternative, that the 

probate court 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, the 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. The probate court thus struck Exile’s motion to 
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vacate, dismiss, and close the estates. The probate court further determined that 

even if Exile could intervene, the potential claims against Exile described in 

Huntsman’s petition to reopen were “new property” that authorized reopening 

the estates 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 estates’ application for attorney’s fees.

In January 2022, 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 estates were properly 

reopened. The district court went on to deny both sides’ summary judgment 

motions. Soon thereafter, the estates successfully moved to amend their petition 

in the civil lawsuit to replace their common law claim for trade and service mark 

infringement with a claim 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 estates cross-appealed 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.
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IV. Exile’s Intervention in the Probate Estates.

We begin with the probate court’s threshold determination that Exile is an 

interloper with no ability to challenge the estates’ reopening. As the probate court 

noted, the probate code includes no provisions that address a party’s 

intervention in a probate proceeding. But Iowa Code section 633.34 provides that 

unless otherwise stated, all actions triable in probate apply the Iowa Rules of 

Civil Procedure. Rule 1.407 provides for two ways to intervene in a case:

intervention as a matter of right and permissive intervention. Iowa R. Civ. P. 

1.407(1), (2).

The rule on intervention 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 property 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 protected by another party. Id. r. 1.407(1)(b) 

(emphasis added).

The rule on permissive 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.” Id.

r. 1.407(2)(b) (emphasis added). The permissive intervention subrule concludes 

with this: “In exercising its discretion, the court shall consider whether the 

intervention will unduly delay or prejudice the adjudication of the rights of the 

original parties.” Id. r. 1.407(2) (unnumbered paragraph). A later subrule guides 
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courts on its consideration of permissive intervention applications, stating that 

courts 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 the confusion that surrounds the 

appellate standard of review from denials of intervention because of the two 

different types of intervention. 474 N.W.2d 539, 541 (Iowa 1991). In DeVoss, two 

heirs appealed the district court’s denial 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, we remarked that most 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 Right.

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, rights that encroach upon the trademark rights that 

Exile was already vested with” through 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 protect that interest.” Iowa R. Civ. P. 
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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. The property rights 

dispute between the estates 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 probate court did not rule 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 estates. 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 estate; 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 estates. Exile is not an heir 

at law, a beneficiary under any testamentary instrument, a creditor of the estates 

or the decedents, or any other claimant seeking estate assets. Rather, Exile’s role

is merely that of a potential debtor to the estates 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 “that 

appellants as possible debtors of the estate were not interested parties to the 

estate proceedings and could not intervene in the proceedings”). The probate 
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court didn’t rule that Huntsman inherited Ruth’s intellectual property rights. 

Exile is free to raise in the civil lawsuit whether there are any name, image, and 

likeness rights and whether any such rights are inheritable. 

That 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 estates 

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 intervention as of right. 

B. Permissive Intervention.

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 

permissive 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) (emphases 

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 these estates. The petition for estate reopening is an equitable 
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action, while claims for misappropriation of a person’s name and likeness and 

claims to quiet title in intellectual property are legal actions. The narrow scope 

of a petition to reopen an estate presents no overlapping issue with the resolution 

of a claim for misappropriation 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 (quoting 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 estates. Again, Exile is 

free to raise in the civil lawsuit whether any name, image, and likeness rights 

existed or still exist and, if so, whether those rights are inheritable. 

In 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 circumstance that would require 

permitting Exile to intervene and, on 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 is 

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 without a legal basis to intervene “is considered a mere 
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‘interloper’ who acquires no rights by his unauthorized interference”). We find no 

error in the probate court’s denial of Exile’s request for permissive intervention.

Because we affirm the district court’s judgment on the threshold issue 

denying Exile’s attempt to intervene in the matter and striking Exile’s motion to 

vacate, dismiss, and close the estates, we need not address the merits of the 

other issues raised in that motion.

V. The Estates’ Request for Attorney’s Fees.

The estates cross-appeal the probate court’s denial of their request for 

attorney’s fees. As a basis for their request, they recite Exile’s statement in the 

civil action that Ruth’s estate was the proper plaintiff to bring the claim, only to 

later move to vacate the order reopening Ruth’s estate after her estate was added 

as a plaintiff. The estates also argue that Exile pursues a frivolous end run of 

the district court’s summary judgment ruling by repackaging previously-rejected 

arguments in this appeal.

The estates ask us to enforce rule 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, modification, 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. 
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Iowa Dist. Ct., 765 N.W.2d 267, 272 (Iowa 2009). We thus review a district court’s 

decision regarding the imposition of sanctions under rule 1.413 for abuse of 

discretion and, 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, 214–15 (Iowa 2021). We consider a variety of factors in

evaluating compliance with the 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. Arguments “made 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, 

the arguments weren’t frivolous within the meaning of rule 1.413(1). 955 N.W.2d 

at 215. In rejecting the estates’ request to impose a fee-shifting sanction against 

Exile, the probate court noted that Exile supported its arguments with statutes, 

caselaw, and facts, and 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 

reasonable basis for the arguments it presented, and we agree. Exile engaged in 

no misconduct warranting a sanction, and we find no error in the probate court’s

refusal to sanction Exile with a fee-shifting award in this case.
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VI. Conclusion.

Our holding in this 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. We 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 estates. We 

will not turn the probate court’s simple reopening of the estates into a second 

litigation over whether or to whom the potential debt is owed where Exile has no 

other connection to the estates. 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 estates’ motion to strike Exile’s 

motion 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 estates’ 

request for attorney’s fees.

AFFIRMED.