Sun, wind and a cutthroat business on the bay

By Patrick Sullivan | Nov. 17, 2016

Saburi Boyer was in a coma when he stopped making payments on a contract he’d signed with an East Grand Traverse Bay resort owner to ensure his parasailing operation wouldn’t be run out of business.

Boyer’s wife, Danielle, didn’t like the messages demanding payment she received in the hospital from the owner of the ParkShore Resort, Bryan Punturo, so she sought out a lawyer, Brace Kern, who asked to look at that noncompete contract.

“As soon as I saw the contract, I’m like, ‘This is an antitrust violation, this is a covenant not to compete, this is extortion,” Kern said. “That’s when I contacted the attorney general’s office.”

Michigan Attorney General Bill Schuette answered. There was an investigation. Charges were filed. A press conference was held at the courthouse in Traverse City. Punturo, 59, was charged with extortion and faced 20 years in prison.

The case didn’t hold up, however. 86th District Court Judge Thomas Phillips dismissed the charge in the face of an aggressive defense mounted by Punturo’s lawyer, Jonathan Moothart. Phillips determined that what Punturo did might have been reprehensible, but it wasn’t a crime.

Now Schuette’s office is appealing Phillip’s decision in a case that could draw the line between aggressive business tactics and a criminal act.

THE SEED OF A DISPUTE

There are three places in Michigan where you can parasail. One is in Mackinaw City. The other two are on East Bay near Traverse City.

People pay $60 or $100 per rider, they get strapped into a harness under a sail, they stand on a platform at the back of a speedboat, and then as the boat accelerates, the sail fills with air and they lift into the sky. Rides last 10 to 12 minutes and reach 400 feet into the air.

The dispute over parasailing on East Bay started in 2006 when Boyer struck out on his own after subleasing space at Punturo’s resort for several years.

Boyer, 35, said when he tried to move his business, Traverse Bay Parasail, from the ParkShore Resort to the Sugar Beach Resort, he more or less ended up at war with Punturo.

“He told me that if I went to a competing hotel, that I was driving away business from his property to a competitor of his, that it was just as if I was taking money out of his pocket and putting it in mine,” Boyer testified.

Boyer left for Sugar Beach, and Punturo set up his son with a parasailing business. Boyer said he and Punturo’s son, Casey, were able to patch things up and peacefully operate parasailing businesses together on East Bay.

“I actually really liked to compete with Casey. It was friendly; we both made money,” Boyer said. “I do believe that more shoots up in the sky bring in more business.”

A FATHER BETRAYED

The peace fell apart in 2014 when Casey Punturo decided to get out of the parasailing business and decided to sell his boat.

Boyer said when the younger Punturo offered to sell his boat to him, he asked why he wouldn’t sell it to his father or to another East Bay businessman and boating competitor, Eric Harding. Boyer said Casey Punturo told him they weren’t interested.

Boyer said he wanted the boat because he wanted to expand his business. The transaction, though, caused a rift between father and son and seemed to open up the wounds from eight years before.

Boyer said he later learned that Bryan Punturo forbade his son to sell the boat to him but that Casey defied his father. “That is what I think infuriated (Bryan) to a new level,” Kern said.

Bryan Punturo denied that he or Harding had been offered to buy the boat. He said the sale of the boat created a conflict between him and his son because he believed Boyer was taking advantage of Casey.

Around that time, Boyer learned that the elder Punturo was trying to recruit a parasail operator to come to his resort to undercut Boyer’s prices and run him out of business.

With a new boat, Boyer needed more dock space. He said he decided to approach Punturo. He said he hoped enough time had passed, and he could lease space at the ParkShore again.

“That’s when he said, ‘I’ve got a better idea: Why don’t you stay the hell off of my dock and pay me anyway,’” Boyer said in an interview.

Punturo demanded Boyer pay him $20,000 a year for “competition rights,” Boyer said. He said Punturo promised to undercut his prices and ruin him if he didn’t pay.

“I was flabbergasted. I was befuddled. I had never seen anything like that before,” Boyer testified. “I was very scared and intimidated. … He said it himself. He’s financially capable of running me out of business without it affecting him financially. And he’s done it before.”

‘I FROZE UP IN FEAR’

Boyer testified that it all happened extremely fast, and he had no time to think about it.
Boyer offered to pay $60,000 over five years.

Punturo rejected the offer.

Boyer first received the “competition rights” offer at 11 a.m. on May 5, 2014. On May 6, he received an email at 10:47 a.m. that he had a 24-hour “hard deadline” to answer.

Punturo reiterated his threat in a phone call at the deadline, Boyer said.

“I felt backed into a corner,” he testified. “If I didn’t pay him the $20,000 a year, he was going to make my life a living hell, he was going to crush me and everything that matters to me, and he was going to bury me by the end of this.”

By the end of the call, Punturo was no longer calm and cool as he had been in earlier conversations, Boyer testified. Punturo was now yelling into the phone.

“I froze up in fear,” Boyer told the court.

Punturo gave Boyer five minutes to talk to his wife. They’d already talked and decided he shouldn’t take the deal. But now Boyer said he believed he had no choice.

He testified that he told his wife: “I’m really sorry. I don’t want to be a coward, but I don’t think we have a choice in the matter.”

Boyer was told to draw up the contract. He said he agreed because he figured that would be better than to have Punturo draw it up.

That Boyer drew up the contract, not Punturo, would become a significant part of Punturo’s defense.

Boyer paid in installments, but the following year the payments stopped when Boyer was admitted to Munson Medical Center for what he thought was the flu. When he woke up from a medically induced coma, he discovered he had leukemia. (Boyer is currently in remission and doing well.)

A COURT CASE STALLED

When the preliminary exam to determine whether there was probable cause to take Punturo to trial on the extortion charge began on June 24, it looked at first as though it might be a breezy hearing — one witness, some arguments and then to circuit court where a trial date could be set.

Assistant Attorney General Matthew Payok told Phillips, the district court judge, that one witness would establish the three elements of extortion he needed to prove. The legal elements that comprise extortion are that a threat was made, that the threat promised to injure person or property, and that the threat was carried out for profit.

“This is a one-count charge, your honor,” Payok said. “We believe we have one witness to call that will establish those three elements.”

It didn’t turn out to be so straightforward.

The hearing dragged on for hours, and when the day was over, the lawyers still had more to talk about. The hearing was stayed for another day and another witness and, after more hearings, more testimony, more arguments and thousands of pages of briefs filed with the district court, the preliminary exam finally concluded on Sept. 29 when Phillips found that prosecutors failed to produce adequate evidence that a crime had been committed.

They’d proved the defendant did some “nasty, mean-spirited and reprehensible” things, Phillips said, but they didn’t prove a crime. Moothart said he was pleased with the result, but he disagreed with Phillips’ characterization of his client.

“First of all, let me say this: I have all the respect in the world for Judge Phillips, and he is a very good judge and a hardworking guy,” Moothart said. “Having said that, Judge Phillips only heard one side of the story.”

Moothart said if Punturo would have testified — which defendants don’t do at preliminary examinations — another side of the case would have come out.

PUNTURO FIRES BACK

In an interview with the Express, Punturo said Boyer approached him to make a deal in 2014. He said he doesn’t understand the criminal charges because it seemed to him like it was Boyer who wanted to corner the parasailing market on East Bay.

Boyer wanted to lease space at the ParkShore dock after he purchased Punturo’s son’s boat, but Punturo said he didn’t want to have Boyer back at his resort.

“I had no intentions with having a relationship with Saburi Boyer because I’d had them in the past and they all went bad,” Punturo said.

Punturo said he planned to run his own parasailing business.

He said Boyer was the first to make threats. He pointed to a text message Boyer sent him that promised he would out-compete Punturo, and Punturo wouldn’t survive if he got into parasailing because Boyer had so much more experience.

“He said, ‘What will it take for you not to go in business against me?’” Punturo said.

In the trail of emails and text messages, it is Punturo who introduces the idea of “competition rights,” but Punturo said he believes that’s what Boyer wanted.

And that’s what Boyer got. Punturo said it was a mutually beneficial contract, and the only reason it went sour was the weather in the summer of 2014 — it was too cold and windy.

Punturo said if that season were normal, Boyer would have made enough money to pay the contract and keep a nice profit for himself. Instead, the parasailing business on East Bay was terrible that year, and Boyer fell behind on payments.

“Everything was pretty simple and innocent and straightforward business until Saburi went to Brace Kern and said, ‘Oh my god, I’m being sued because of a contract,” Punturo said.

He said he believes his behavior looked reprehensible to Phillips after the preliminary hearing testimony because of a message he’d written in anger to Boyer after Boyer became ill in which Punturo called him out and demanded payment. He said he was provoked and had been angry when he wrote that.

“It makes me look bad, but if you take it in the proper context (in light of the series of events that transpired between the two), it’s all very palatable and understanding,” Punturo said.

Boyer maintains he wasn’t trying to corner the market and that he only paid Punturo out of fear. “I felt like I was being extorted through this entire timeline,” Boyer said. “When I was going through it, I felt like it was going on every day.”

A WITNESS FOR THE DEFENSE

Punturo’s actions might have been aggressive, but they were legal, Moothart argued

“Operating a lawful business is a constitutional right,” Moothart said.

The heart of Moothart’s argument is that it isn’t against the law to threaten to do something that’s legal, and undercutting a competitor isn’t against the law.

Moothart called a single witness, Harding, the parasailing competitor, to counter some of Boyer’s testimony.

Harding, a 42-year-old who’s known Punturo for 25 years and Boyer for at least 15, testified that he leased space at Punturo’s resort where he ran a parasailing and boat rental business. He hired Boyer as a captain in the early 2000s. For a while they operated the parasailing business as 50-50 partners until Boyer bought him out.
Harding stayed on as the owner of the boat rental business, and they worked side by side until 2006, when Boyer moved to the Sugar Beach Resort.

In 2014, when Casey Punturo sold his parasailing boat to Boyer, Harding ran his business at a property he leased just down the beach from the ParkShore Resort.

He said Boyer repeatedly approached him that spring, interested in coming to terms with Harding in an effort to make sure Harding didn’t compete against his parasailing business.
Harding said Boyer offered him three choices — to pay him not to have a parasailing business at his dock, to let Boyer pick up parasailing customers from his dock and pay him a percentage, or to install a computer program Harding could use to refer customers to Boyer in exchange for a cut.

When Harding refused the offers, he said Boyer proposed they agree upon a minimum price for parasail rides over the bay.

“He said there’s no reason for anybody to be flying in Traverse City for less than $100 a person,” Harding testified.

Boyer denied that he ever attempted to set prices or offered to pay Harding not to compete against him.

“There was never any mention of a noncompete from me to Eric or to Bryan,” he said.

CASE DISMISSED

In his ruling, Phillips found that Punturo’s actions skirted close to criminality but didn’t cross the line.

The rationale for that lies in case law, which has found that extortion must include the threat of an illegal act, Phillips said in his decision. In other words, something like, “Pay me or I’m going to burn your house down.”

Phillips ruled that prosecutors didn’t prove an illegal threat in this case.

But that didn’t stop Phillips from commenting on what he thought of Punturo’s actions and whether they perhaps should be illegal.

“What Mr. Punturo did in my opinion was nasty and mean-spirited, reprehensible conduct in the way he negotiated. But there’s been no law presented that what he did was illegal. Maybe it should be illegal,” Phillips said. “As for whether it should be illegal or not, obviously, that’s not this court’s providence.”

Phillips predicted the case would “go up and up and up” in the appellate court system because it presented a legal question in need of clarity.

The Michigan attorney general’s office has filed a notice of appeal to the 13th Circuit Court but hasn’t yet submitted arguments. A spokesperson from the attorney general’s office did not respond to messages seeking comment.

Kern filed a lawsuit on Boyer’s behalf that sought $750,000 in damages from Punturo. That lawsuit was dismissed from the 13th Circuit Court in Traverse City upon a motion from Moothart. Kern then filed a similar lawsuit in federal court.

Now, there are once again two parasailing operations on East Bay. Grand Traverse Parasail operates two doors down from the ParkShore Resort, although Punturo said he is not involved in that business. Boyer's Traverse Bay Parasail website is taking reservations for the 2017 season.

An earlier version of this story mistakenly described Grand Traverse Parasail as a business that is affiliated with the ParkShore Resort. It operates from a beach club two doors down from the resort. The story also should have noted that prior to the filing of a civil lawsuit in federal court by Saburi Boyer and Traverse Bay Parasail against Bryan Punturo and the ParkShore Resort, a similar lawsuit was dismissed from 13th Circuit Court in Traverse City upon a motion from the defendant’s attorney. Express regrets the error and omission.