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Cafe owner vows to fight embezzlement charges

The owner of a Laurel Park café faces seven felony charges in connection with what investigators say was the theft of $208,463 from an elderly man who had made her the beneficiary of $2.65 million worth of investments, according to court documents.


SBI agents arrested Kim Ellen Justice, 56, on Thursday, four days after a Henderson County grand jury indicted her on on three counts of exploitation of an elder and four counts of embezzlement. She was freed on a $44,000 bond.
During a first appearance in District Court on Thursday, Justice waived her right to court-appointed counsel. Court records did not identify her attorney.

“It’s a mess,” Justice said in a telephone interview from her business, Tooley’s Café, on Monday morning. “I’ve worked so hard. I’ve never been in this kind of position. I don’t know what people are expecting me to say.”

News accounts “made me sound like this terrible person,” she said. “I don’t know if I’ve ever had a speeding ticket. I’ve had this business for 15, 16 years now. I just pray and hope that the good I’ve done here people will know.”
Kim JusticeKim JusticeShe described the felony counts spelled out in indictments as an inaccurate description of her relationship with Thomas J. Byrne, a retired computer programmer and a regular Tooley's customer who died on Dec. 30, 2014, at age 78.
“I’ve known him for 10 years,” she said. “I was like his daughter. He was like a father to me. I have oodles of people that know he came in here once a day or twice a day. He’s done family functions with me. His family has known about me.”
The indictments, based on an investigation by SBI agent R.B. Williams, charge Justice with cashing checks totaling $208,463 in late 2014, including a check on a Wells Fargo account for $3,000 on Oct. 14, 2014; a check on an account identified as HH Hunt for $3,150 on Dec. 15; a check on the Wells Fargo account for $200,000 on Dec. 18, 2014; and a check from IBM for $2,313 on Dec. 29, 2014.
The alleged embezzlement came to light when attorneys for Byrne’s estate began looking at his bank accounts.
“My assistant, who’s a former banker, looked at the checks and said, ‘This isn’t right,’” said Lee Mulligan, an attorney with the Strauss & Associates law firm. “So I called local police and they said they couldn’t do anything.” She met with District Attorney Greg Newman, who called in the SBI. (City police officials told her the matter sounded like a civil dispute because Justice had received power of attorney authorization to control Byrne’s finances.)
The loss could have been far greater, Mulligan said, because Justice had control of Byrne’s retirement account worth $2.65 million.
“It’s not in the indictment because we froze the account,” Mulligan said. “We filed a civil lawsuit and got a freeze on that asset.” The plaintiffs in the civil lawsuit are Byrne's heirs, a brother and a nephew, Joseph M. Byrne, the administrator of his uncle's estate.

In a complaint file on May 21, 2015, in Henderson County Superior Court, attorneys said that Justice had "befriended" and "developed a relationship" with Byrne that enabled her to control his financial affairs. Specifically, the lawsuit said, she had written checks on his accounts and persuaded him to make her the beneficiary of $2.65 million in three Edward Jones investment accounts.

"Unbeknownest to decedent, and in his incapacitated and incompetent state, he was being defrauded of his money by Justice, in an amount totaling $2,933,249.93." The estate's attorneys said that her actions "were made with the intent to deceive" Byrne. In 2012, the lawsuit said, doctors at Johns Hopkins Hospital in Baltimore had dianosed Byrne with dementia and found him to be "incompetent and not able to handle his own affairs." A death certificate identified the cause of death as dementia and diabetes. Justice executed a power of attorney document on Aug. 21, 2014, and soon after that began to transfer his savings into her own accounts, the civil complaint said.

In the weeks before Byrne's death, the lawsuit said, Justice had written herself checks for $75,000 and $200,000, made credit card payments of $4,846 to herself and made cash withdrawals of $900 from a Wells Fargo ATM next door to Tooley's. The check for $200,000 was written to Kim Justice "in Kim Justice's handwriting ... with the 'signature' on the check merely a printed name of 'Thomas Byrne.'"

At the time Byrne was residing at Spring Arbor, a facility "specially serving sufferers of Alzheimer's disease and dementia." When he died, Byrne had three Edward Jones accounts worth $2.65 million. "Merely 11 days prior to (Byrne's death), his bank account was substantially drained," the complaint said, and six weeks after his death his  $2.65 million investment account had been transferred to Justice.

The estate's attorneys also sued Wells Fargo, charging that the bank wrongfully allowed Justice access to Byrne's accounts and processed the $200,000 check "even though the handwriting on the check was clearly not that of (Byrne) and ... was 'signed' merely by someone printing the name 'Thomas Byrne,'" which differed greatly from the signature Wells Fargo had on file."

Superior Court Judge Zoro J. Guice granted the estate's request for a temporary restraining order the day it filed the complaint.

In an answer filed two months later, Justice's attorney, B.B. "Buddy" Massagee III, said that his client "has for many years been a friend of Thomas J. Byrne," that he had knowingly and willingly appointed her his "attorney in fact," had consulted with her on his financial affairs and "made many gifts" to her. The payments to Justice the estate characterized as fraudulent  were in fact made "at the express direction" of Byrne and "in his presence." During the time frame in question, Spring Arbor West "did not provide care services" for patients with dementia or Alzheimer's disease. Before Byrne opened the Edward Jones accounts in November 2014, Edward Jones financial adviser Ken Adams met with Byrnes "to satisfy himself that Mr. Byrnes had the capacity to understand the nature and effect of the transactions," Massagee wrote in his answer. The action naming Justice as beneficiary was made "at his express directions and pursuant to his wishes," the defense attorney said, adding: "It is admitted that Thomas J. Byrne trusted Justice, with good reason." Massagee asked the court to dismiss the Byrne estate's complaint. Wells Fargo Bank, in its answers, denied any liability in the dispute.


Mulligan, one of the attorneys for the Byrne estate, was skeptical about Justice’s portrayal of her role as benign.
“He had no children, his wife had been gone for quite a while and he had dementia,” Mulligan said. If the money was used legitimately for the estate’s benefit “it doesn’t show in the checks,” she added.
Justice vowed to stay open and said she hoped her customer base would continue to patronize the restaurant in Laurel Park Village.
“I have a loyal following of people and we’ve been stable here,” she said. “I don’t know what this does to a business.”