Marafi v. El Achchabi

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Marafi v. El Achchabi

SADIQ MARAFI v. HIND EL ACHCHABI ET AL.
(AC 45745)
Elgo, Suarez and Eveleigh, Js.

Syllabus

The defendant appealed to this court from the summary judgment rendered
by the trial court in favor of the plaintiff on his claims of fraudulent
misrepresentation, statutory theft and unjust enrichment. After meeting
in 2001, the parties became involved in a romantic relationship. Despite
this ongoing relationship, the defendant married A in 2007. Later in 2007,
when the plaintiff gave birth to a child, S, she told the plaintiff, who
was present for the birth, that he was S’s biological father. She then
filed for divorce from A. In 2009, the defendant had a DNA test done
that conclusively established that A was S’s biological father, but she
did not share this result with the plaintiff. After the defendant’s marriage
to A was dissolved, she married the plaintiff in 2013. The defendant
then began a romantic relationship with B in 2014. She gave birth to
another child, N, in 2015 and again represented to the plaintiff, who
was present for the birth, that he was the biological father. In 2016, B
submitted to DNA testing, which confirmed that N was his biological
daughter. Between 2007 and 2015, the plaintiff transferred more than
$187 million to the defendant pursuant to the belief that S and N were
his children. Following the dissolution of his marriage to the defendant,
the plaintiff commenced the present action, alleging, inter alia, fraudu-
lent misrepresentation, statutory theft, and unjust enrichment. The
defendant did not file an answer to the complaint but later admitted in
an interrogatory that she knew that A and B were the biological fathers
of her children from the time she was first aware of her pregnancies.
Thereafter, the plaintiff filed a motion for summary judgment; the defen-
dant did not file an objection or appear at the hearing on the motion.
The court rendered judgment for the plaintiff and awarded him damages
of more than $500 million, and the defendant appealed to this court. Held:
1. The trial court properly determined that no genuine issue of material fact
existed with respect to the plaintiff’s claims of fraudulent misrepresenta-
tion, statutory theft, and unjust enrichment:
a. The trial court properly rendered summary judgment on the count of
the plaintiff’s complaint alleging fraudulent misrepresentation: it was
undisputed that the defendant had falsely represented to the plaintiff
that he was the father of both S and N and that the defendant at all
times knew that those representations were untrue, and the court was
entitled to rely on the plaintiff’s assertions that he would not have made
financial transfers to the defendant if he had not believed his paternity
of the children; moreover, the plaintiff’s reliance on the defendant’s
representations that S and N were his children was reasonable and
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Marafi v. El Achchabi
justifiable under the facts of this case, as he was present for the births
of both children, he established a trust for their benefit at the defendant’s
behest, and he spent almost a decade acting as their father under the
misapprehension that they were his children; accordingly, the plaintiff
established a prima facie case of fraudulent misrepresentation, and the
defendant did not respond in any manner to the motion for summary judg-
ment.
b. The trial court properly rendered summary judgment on the count of
the plaintiff’s complaint alleging statutory theft by false pretenses; this
court concluded, for the same reasons and evidentiary basis set forth
with respect to the claim of fraudulent misrepresentation, that the trial
court properly determined that the plaintiff established a prima facie
case of statutory theft, and the defendant did not respond.
c. The trial court properly rendered summary judgment on the count of
the plaintiff’s complaint alleging unjust enrichment; this court concluded,
in light of the evidentiary basis submitted by the plaintiff in support of
his motion for summary judgment, that the trial court properly deter-
mined that the plaintiff established a prima facie case of unjust enrich-
ment, and the defendant failed to set forth specific facts or evidentiary
support to demonstrate that there was a genuine issue for trial.
2. The defendant could not prevail on her claim that the trial court’s failure
to conclude, sua sponte, that the plaintiff’s claims of fraudulent misrepre-
sentation, statutory theft and unjust enrichment were barred by the
statute (§ 52-572f) prohibiting any action brought upon any cause arising
from ‘‘criminal conversation,’’ constituted plain error: when the plain-
tiff’s motion for summary judgment was before the trial court, it was
not obvious or indisputable that § 52-572f operated in the particular
context of this case, as the plaintiff’s operative complaint did not include
a criminal conversation count or include the word adultery, but instead
was rooted in the defendant’s knowingly false representations to the
plaintiff that he was the biological father of S and N, and the defendant
provided no authority for the proposition that actions for fraudulent
misrepresentation, statutory theft or unjust enrichment contravene § 52-
572f; moreover, the trial court was entitled to rely on the defendant’s
affirmative representations in her previously filed motion to transfer
the case to the complex litigation docket that this was a fraud case, a
pleading that made no mention of adultery or criminal conversation,
and which, together with her silence in the face of a motion for summary
judgment, further undermined her claim that the court should have sua
sponte invoked § 52-572f to bar the plaintiff’s claims.
Argued January 25—officially released May 14, 2024

Procedural History

Action to recover damages for, inter alia, the named
defendant’s alleged fraudulent misrepresentation, and
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for other relief, brought to the Superior Court in the
judicial district of Stamford-Norwalk and transferred
to the Complex Litigation Docket, where the court,
Ozalis, J., granted the plaintiff’s motion for summary
judgment and rendered judgment thereon, from which
the named defendant appealed to this court. Affirmed.
John R. Weikart, with whom were James P. Sexton,
and, on the brief, Megan L. Wade, for the appellant
(named defendant).
Jonathan M. Freiman, with whom was Emmett F.
Gilles, for the appellee (plaintiff).

Opinion

ELGO, J. The defendant Hind El Achchabi1 appeals
from the summary judgment rendered by the trial court
in favor of the plaintiff, Sadiq Marafi. On appeal, the
defendant claims that the court (1) improperly deter-
mined that no genuine issue of material fact existed
with respect to the plaintiff’s actions for fraudulent
misrepresentation, statutory theft, and unjust enrich-
ment, and (2) committed plain error in granting the
plaintiff’s motion for summary judgment because those
actions were predicated on adultery in contravention
of General Statutes § 52-572f. We affirm the judgment
of the trial court.
Mindful of the procedural posture of this case, we
set forth the following facts as gleaned from the plead-
ings of the parties and the affidavits and other proof
submitted by the plaintiff, viewed in the light most
Rysaffe Administrators Sarl, in its capacity as trustee of the Achchabi
1

Family Trust; Portchester Limited; Portchester Holdings, LLC; and Ryo, LLC,
also were named as defendants in this action. On August 9, 2018, Ryo, LLC,
was defaulted for failure to appear pursuant to Practice Book § 17-20. Rysaffe
Administrators Sarl, Portchester Limited, and Portchester Holdings, LLC,
appeared before the trial court but have not participated in this appeal. We
therefore refer to Hind El Achchabi as the defendant in this opinion.
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favorable to the defendant.2 See, e.g., Martinelli v. Fusi,
290 Conn. 347, 350, 963 A.2d 640 (2009). The plaintiff
is a Kuwaiti citizen who has served as Kuwait’s Ambas-
sador to Austria and as its Permanent Representative
to the United Nations International Organizations in
Vienna since September, 2013. The defendant is a citizen
of Morocco who maintained residences in Morocco,
Austria, and Greenwich, Connecticut.
The parties met in 2001 and subsequently began a
romantic relationship. Despite that ongoing relation-
ship, the defendant married Ahmad Al Saad in 2007.
The defendant at that time represented to the plaintiff
that Al Saad was homosexual, that her relationship with
Al Saad was not sexual in nature, and that they married
only for family and social reasons for Al Saad’s benefit.
When the defendant became pregnant, she told the
plaintiff that he was the biological father. Later in 2007,
the defendant gave birth to a son, S, at a hospital in
New York.3 The plaintiff was with the defendant at the
time of S’s birth; Al Saad was neither present for the
birth nor in the United States. After being released from
the hospital, the plaintiff and the defendant spent time
together with S at the Four Seasons Hotel in New York.
During that time, the defendant filed for divorce from
Al Saad and the parties discussed purchasing a vacation
home for their new family.
At the behest of the defendant, the plaintiff thereafter
transferred approximately $6.3 million to her to settle
the Achchabi Family Trust (trust) for the benefit of
their current and future children, which funds were
2
The defendant in this case did not answer the plaintiff’s complaint and
did not file any responsive pleading to the plaintiff’s motion for summary
judgment.
3
On March 1, 2019, the parties filed a joint motion for a protective order
to keep certain information confidential, including information concerning
the minor children at issue in this case. By order dated March 29, 2019, the
court granted that motion.
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used to purchase real property known as 31 North Por-
chuck Road in Greenwich (Greenwich home) in 2009,
as well as the subsequent purchase of adjacent property
known as 34 North Porchuck Road. Those properties
later were conveyed for no consideration to Portchester
Holdings, LLC, and were its only assets.4
In September, 2009, the defendant covertly had a
DNA test performed on S, which conclusively estab-
lished that Al Saad was the child’s father. The defendant
informed the plaintiff of that test but falsely stated that
its results had confirmed his parentage. In the years
that followed, the defendant consistently referred to
the plaintiff as S’s father in both private and public
settings. On one occasion in which the plaintiff
expressed a concern as to whether S was his child due
to her prior marriage to Al Saad, the defendant angrily
admonished him for raising such an issue.
The parties married in Kuwait in 2013. Between 2007
and 2015, the plaintiff transferred more than $187 mil-
lion to the defendant while under the misapprehension
that S was, in fact, his child.
Unbeknownst to the plaintiff, the defendant began a
romantic relationship with Mohsine Karim-Bennani in
2014. The defendant became pregnant and again repre-
sented to the plaintiff that he was the biological father,
though she knew that was false. As the defendant admit-
ted in her June 6, 2019 response to the plaintiff’s inter-
rogatories, she ‘‘knew the paternity of each of her bio-
logical children from the time she was first aware that
she was pregnant with each of her biological children.’’
(Emphasis added.)
4
Portchester Holdings, LLC, is a Connecticut limited liability company.
The sole member of Portchester Holdings, LLC, is Portchester Limited, a
Cayman Islands entity. The sole shareholder and director of Portchester
Limited is Rysaffe Administrators Sarl, a Swiss entity that at all relevant
times served as trustee of the trust.
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The defendant gave birth to a daughter, N, at a hospi-
tal in New York in 2015. The plaintiff was present at
the time of N’s birth; Karim-Bennani was not there.5
Following their release from the hospital, the plaintiff,
the defendant, S, and N spent a month together at the
Greenwich home and the defendant repeatedly told the
plaintiff that he was N’s father. The plaintiff believed
her and considered N to be his daughter. The plaintiff
held a party in Vienna, Austria to celebrate N’s birth,
which was attended by dignitaries from the Austrian
government and the international diplomatic commu-
nity.
In late 2015, the parties’ relationship soured when
the plaintiff received reports from personal staff that
the defendant was having an affair with Karim-Bennani.
Although the defendant initially denied that allegation,
in January, 2016, she left the family home in Austria,
never to return. The defendant later admitted to the
affair with Karim-Bennani and informed the plaintiff
that she wanted a divorce.
In April, 2016, the plaintiff filed a complaint in
Morocco against the defendant and Karim-Bennani.
During the ensuing investigation, Karim-Bennani claimed
that N was his biological daughter and submitted to
DNA testing, which confirmed his parentage. Following
a trial, a Moroccan court found the defendant guilty of
intentional fabrication of a document comprising false
information, illegally obtaining an administrative docu-
ment by presenting false information, intentional use
of a forgery, and adultery.6
5
In support of his motion for summary judgment, the plaintiff submitted
a copy of an announcement prepared by the obstetrician who was present
for N’s birth, which states: ‘‘This is an announcement that [the plaintiff] and
[the defendant] delivered a baby girl on [redacted] 2015. The baby’s weight
is 4 [pounds], 4 [ounces]. She was delivered by Dr. Farris Fahmy at Mount
Sinai Roosevelt Hospital.’’
6
A copy of the November 3, 2016 decision of the Moroccan court was
submitted as an exhibit to the plaintiff’s motion for summary judgment in
the present case.
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That same year, Al Saad filed a paternity lawsuit
against the defendant in Morocco. After receiving DNA
test results confirming that he was the biological father
of S, Al Saad sent a copy of the results to the plaintiff
in December, 2016. When the plaintiff confronted the
defendant with those DNA test results, the defendant
finally admitted that S was not his son—nine years after
the child’s birth. The parties divorced in 2017.
The plaintiff commenced the present action in May,
2018. The defendant filed an appearance on July 12,
2018, and a request to revise on October 15, 2018, which
the court denied. On October 19, 2018, the defendant
filed an application to transfer the action to the complex
litigation docket, in which she averred that ‘‘[t]his is a
fraud case seeking $100 million in damages, trebled to
$300 million.’’ The court granted that motion on Novem-
ber 8, 2018. The defendant thereafter filed a series of
requests to revise and multiple objections to the plain-
tiff’s interrogatories and requests for production.
On June 14, 2019, the plaintiff filed the operative
complaint, his second amended complaint, which con-
tained five counts. Counts one through four were
directed solely at the defendant and alleged fraudulent
misrepresentation, statutory theft, intentional infliction
of emotional distress, and negligent infliction of emo-
tional distress. In count five, the plaintiff alleged unjust
enrichment against the defendant and other entities.
See footnote 1 of this opinion. At no time did the defen-
dant file an answer to any of the complaints filed by
the plaintiff, including the operative one.
On July 16, 2019, the law firm representing the defen-
dant filed a motion to withdraw its appearance for
cause, which the court granted on August 16, 2019.7
7
In its order, the court found that the law firm had ‘‘demonstrated good
cause by establishing that [the defendant] has failed to pay substantial sums
due and owing on the firm’s invoices for legal services in connection with
this matter, some outstanding for more than [one] year. . . . Given the
significant amount of money due and owing, the court finds that it would be
unreasonable to require [the law firm] to continue to finance this litigation.’’
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At that time, the defendant’s participation in this case
before the Superior Court ceased.8
On December 13, 2019—more than eighteen months
after the action commenced—the plaintiff filed a
motion for summary judgment on counts one, two and
five of the operative complaint. That motion was accom-
panied by a memorandum of law and fifty exhibits,
which included affidavits from the plaintiff and Attor-
ney Richard Luedeman, bank records documenting mil-
lions of dollars in payments to the defendant by the
plaintiff, invoices for large expenditures made by the
defendant including a yacht, multiple aircraft, and
approximately $3.5 million in jewelry, copies of text
messages and WhatsApp9 chats between the parties,
and numerous photographs of the plaintiff with the
defendant, S, and N. The defendant did not file an objec-
tion to the plaintiff’s motion for summary judgment.10
The court held a hearing on the motion for summary
judgment on February 27, 2020. When the defendant
did not appear, the court ordered the plaintiff to serve
the motion on the defendant by supplemental service.
On June 4, 2020, the plaintiff filed a certification of
supplemental service, indicating that service was made
8
On August 16, 2019, the trial court sua sponte ordered a sixty day stay
of ‘‘all proceedings’’ in the case ‘‘to give the defendant reasonable time to
obtain new counsel and to protect her interests in the meantime.’’ Those sixty
days passed without the defendant filing an appearance or communicating
in any way with the court.
9
‘‘WhatsApp is a messaging service that uses an [I]nternet connection,
instead of a cellular network connection, to send text messages and photo-
graphs between cell phones.’’ Klein v. Facebook, Inc., 580 F. Supp. 3d 743,
810 (N.D. Cal. 2022).
10
On January 27, 2020, Rysaffe Administrators Sarl, Portchester Limited,
and Portchester Holdings, LLC, filed what they termed a ‘‘response’’ to the
plaintiff’s motion for summary judgment, in which they maintained that they
did not participate in the fraud that allegedly resulted in the transfer of
substantial sums to the defendant and that they ‘‘take no position with
respect to the fraud, theft, and unjust enrichment allegedly committed by
[the defendant].’’
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on the defendant’s attorneys in Switzerland and France,
on the defendant’s sister in Japan, and on an additional
address for the defendant in Rabat, Morocco.

Oral argument on the motion for summary judgment
commenced on September 25, 2020. At that time, the
court remarked that the plaintiff ‘‘certainly makes a
persuasive argument for summary judgment on the lia-
bility for the claims of [statutory] theft, unjust enrich-
ment and [fraudulent] misrepresentation. So I don’t
need . . . further argument on that. . . . What is
unclear to me is the amount of [money that] was trans-
ferred’’ from the plaintiff to the defendant. Following
a colloquy with the plaintiff’s counsel, the court invited
the plaintiff to submit a supplemental filing in support
of the motion for summary judgment. In response, the
plaintiff filed a supplemental brief on October 30, 2020,
in which he averred that he had made wire transfers
and cash remittances to the defendant totaling
$187,888,949.28 from 2007 to 2014. That brief was
accompanied by the sworn affidavit of Attorney Laura
Ann K. Froning. Over the course of 367 paragraphs,
that affidavit painstakingly detailed in chronological
order numerous transfers from the plaintiff’s account
with the National Bank of Kuwait to (1) the defendant’s
account with the Banque Marocaine du Commerce
Extérieur in Morocco and (2) the defendant’s account
with the National Bank of Kuwait in various currencies,
including Swiss francs, United States dollars, euros, and
Kuwaiti dinar. Appended to that affidavit were thirty-
nine exhibits, all of which were bank records document-
ing the transfers referenced in Froning’s affidavit.

On November 2, 2020, the court granted the plaintiff’s
motion for summary judgment. In its memorandum of
decision, the court found that no genuine issue of mate-
rial fact existed with respect to the defendant’s liability
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on counts one, two, and five of the operative com-
plaint.11 The court thereafter entered an order awarding
the plaintiff $192,111,387.20 on the fraudulent misrepre-
sentation count, trebled damages pursuant to General
Statutes § 52-564 on the statutory theft count that
totaled $576,335,551.60, and $6,250,000 on the unjust
enrichment count with respect to the defendant.12 The
court rendered judgment accordingly, and this appeal
followed.
As a preliminary matter, we note the well established
standard that governs our review of the trial court’s
decision to grant a motion for summary judgment. ‘‘The
facts at issue are those alleged in the pleadings.’’ (Inter-
nal quotation marks omitted.) Parnoff v. Aquarion
Water Co. of Connecticut, 188 Conn. App. 153, 164, 204
A.3d 717 (2019). ‘‘Practice Book § 17-49 provides that
summary judgment shall be rendered forthwith if the
pleadings, affidavits and any other proof submitted
show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment
as a matter of law. In deciding a motion for summary
judgment, the trial court must view the evidence in the
light most favorable to the nonmoving party. . . . [T]he
moving party . . . has the burden of showing the
absence of any genuine issue as to all the material facts
. . . . Once the moving party has met its burden . . .
the [nonmoving] party must present evidence that dem-
onstrates the existence of some disputed factual issue.
. . . Our review of the trial court’s decision to grant the
11
The plaintiff subsequently withdrew counts three and four of his com-
plaint, which alleged intentional and negligent infliction of emotional dis-
tress.
12
The court also rendered summary judgment against Rysaffe Administra-
tors Sarl, Portchester Limited, and Portchester Holdings, LLC, on the unjust
enrichment count and ordered them to ‘‘disgorge the assets of the trust to
the plaintiff no later than thirty days after this court’s decision . . . .’’ It is
undisputed that those entities complied with that order, as evidenced by
the notice of compliance filed with the court on December 11, 2020.
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defendant’s motion for summary judgment is plenary.’’
(Citations omitted; internal quotation marks omitted.)
Lucenti v. Laviero, 327 Conn. 764, 772–73, 176 A.3d
1 (2018).
I
On appeal, the defendant claims that the court
improperly determined that no genuine issue of material
fact existed with respect to the plaintiff’s actions for
fraudulent misrepresentation, statutory theft, and unjust
enrichment. We disagree.
A
We begin with the first count of the operative com-
plaint, which alleged fraudulent misrepresentation on
the part of the defendant. Fraudulent misrepresentation
‘‘is an intentional tort’’; Kramer v. Petisi, 285 Conn.
674, 684, 940 A.2d 800 (2008); that ‘‘has four elements:
(1) a false representation was made by the defendant
as a statement of fact; (2) the statement was known to
be untrue by the defendant; (3) the statement was made
with the intent to induce reliance; and (4) the other
party relied on the statement to its detriment.’’13 Com-
panions & Homemakers, Inc. v. A&B Homecare Solu-
tions, LLC, 348 Conn. 132, 144, 302 A.3d 283 (2023).
13
In this appeal, the parties disagree as to whether the fourth element
requires proof that a plaintiff’s reliance was reasonable. See Companions &
Homemakers, Inc. v. A&B Homecare Solutions, LLC, 348 Conn. 132, 144
n.4, 302 A.3d 283 (2023) (‘‘[a]lthough there are circumstances in which the
plaintiff’s reliance must be reasonable for the false representation to be
actionable, we do not address this issue’’); Stuart v. Freiberg, 316 Conn. 809,
829 n.15, 116 A.3d 1195 (2015) (noting that reasonable reliance is essential
element of negligent misrepresentation); Goldstein v. Unilever, Superior
Court, judicial district of Fairfield, Docket No. CV-397881-S (May 3, 2004)
(37 Conn. L. Rptr. 158, 164 n.9) (emphasizing that ‘‘[t]he Restatement formula-
tion of the law of fraud, which has never been adopted by a Connecticut
appellate court, does require that reliance on a fraudulent misrepresentation
be ‘justifiable’ ’’). For purposes of the present analysis, we assume without
deciding that proof of reasonable reliance is required.
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It is undisputed that the defendant falsely represented
to the plaintiff that he was the father of both S and N.
The defendant at all times knew that those representa-
tions were untrue. As the defendant admitted in her
response to the plaintiff’s interrogatories, she ‘‘knew
the paternity of each of her biological children from
the time she was first aware that she was pregnant with
each of her biological children.’’ (Emphasis added.) The
first two elements of fraudulent misrepresentation,
therefore, are plainly established.
The plaintiff filed various materials in support of the
motion for summary judgment, including his December
10, 2019 affidavit. As this court has observed, ‘‘when a
nonmoving party fails to respond to a motion for sum-
mary judgment by setting forth specific facts showing
that there is a genuine issue for trial, the court is entitled
to rely upon the facts alleged in the affidavit of the
moving party.’’ Carrasquillo v. Carlson, 90 Conn. App.
705, 711, 880 A.2d 904 (2005); see also Bartha v. Water-
bury House Wrecking Co., 190 Conn. 8, 11–12, 459 A.2d
115 (1983) (court is entitled to rely on facts stated in
movant’s affidavit when nonmovant does not respond).
In the present case, the defendant never responded to
the plaintiff’s motion for summary judgment. Accord-
ingly, the court was entitled to rely on the facts set
forth in the plaintiff’s December 10, 2019 affidavit.
In that affidavit, the plaintiff stated that he believed
that S was his son and that N was his daughter due
to the defendant’s representations that he was their
biological father. He indicated that he was with the
defendant at the times that she gave birth to both S
and N and that, over the years that followed, he relied
on the defendant’s repeated assurances and representa-
tions regarding his parentage. On the one occasion in
2013 in which he expressed a concern as to whether S
was his child due to her prior marriage to Al Saad, the
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Marafi v. El Achchabi

plaintiff stated that the defendant angrily admonished
him ‘‘for even having asked the question.’’
In text messages with the defendant, copies of which
were submitted in support of the motion for summary
judgment, the plaintiff referred to S as his ‘‘beloved’’
child who he nicknamed ‘‘President’’ and referred to
N as his ‘‘Princess.’’ Other materials submitted by the
plaintiff, such as the written communications to S’s
boarding school and the invitations sent to international
dignitaries to attend a celebration to welcome his ‘‘new-
born baby girl’’ in 2015, demonstrate that the plaintiff
held S and N out to the world as his children. The
plaintiff also submitted several photographs in support
of his motion for summary judgment, many of which
feature him smiling with his arms around S and N.
The plaintiff further averred in his affidavit that he
had transferred ‘‘tens of millions of dollars’’ to the defen-
dant ‘‘because I believed that [the defendant] had been
honest with me and that S was my son and N my daugh-
ter. Had I not believed that, I would not have made those
transfers. My financial relationship with [the defendant]
was entirely predicated upon the family relationships
that she fraudulently claimed.’’ In addition, the plaintiff
produced a panoply of financial records that, along with
the affidavits of Froning and Luedeman, documented
in detail more than $187 million in transfers from the
plaintiff to the defendant between 2007 and 2014.
In light of those materials, we conclude that the court
properly determined that the plaintiff established a
prima facie case of fraudulent misrepresentation. The
facts set forth therein indicate both that the defendant’s
knowingly false representations to the plaintiff regard-
ing his parentage of S and N were made with the intent
to induce reliance and that the plaintiff relied on those
representations to his detriment. We further conclude
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that the plaintiff’s reliance was reasonable and justifi-
able under the facts and circumstances of this case, in
which he was present for the births of both children,
established a trust for their benefit at the defendant’s
behest, and thereafter spent almost one decade acting
as a father under the misapprehension that S, and later
N, were his children.14

Because the plaintiff established a prima facie case
of fraudulent misrepresentation, it was incumbent on
the defendant to ‘‘substantiate [her] adverse claim by
showing that there is a genuine issue of material fact
together with the evidence disclosing the existence of
such an issue.’’ (Emphasis in original; internal quota-
tion marks omitted.) Rainbow Housing Corp. v. Crom-
well, 340 Conn. 501, 522, 264 A.3d 532 (2021); see also
Romprey v. Safeco Ins. Co. of America, 310 Conn. 304,
14
In her principal appellate brief, the defendant suggests that the fourth
element of a fraudulent misrepresentation claim requires proof that the
detriment sustained by a plaintiff was caused ‘‘only’’ and exclusively by
reliance on the defendant’s false statement. She has provided no legal author-
ity for that proposition, nor are we aware of any. Under Connecticut law,
a plaintiff asserting a claim for fraudulent misrepresentation bears the bur-
den of demonstrating that he relied on a defendant’s knowingly false state-
ment and that he ‘‘suffered harm as a result of the reliance.’’ (Internal
quotation marks omitted.) Sturm v. Harb Development, LLC, 298 Conn. 124,
142, 2 A.3d 859 (2010). Moreover, the Restatement (Third) of Torts rejects
the proposition urged by the defendant. As it explains: ‘‘A successful claim
for fraud requires proof that the plaintiff relied on the defendant’s misrepre-
sentation. The element of reliance overlaps with (and may be considered
a form of) the usual requirement in tort that a defendant’s wrong be a factual
or ‘but for’ cause of the harm that the plaintiff suffered. The plaintiff may
have been influenced by several sources, or by multiple statements—some
true, some false—made by the same party. Liability is nevertheless intact
if the defendant’s fraud made a necessary contribution to the plaintiff’s loss,
typically by inducing the plaintiff to enter a damaging transaction. If the
plaintiff was subject to multiple influences, each of which would have been
sufficient to cause the resulting loss, the defendant whose fraud was among
those influences may be held liable even though it may appear that the
fraud was not a ‘but for’ cause of the harm.’’ (Emphasis added.) 1
Restatement (Third), Torts, Liability for Economic Harm § 11, comment (a),
p. 95 (2020).
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320–21, 77 A.3d 726 (2013) (‘‘the rule that the party
opposing summary judgment must provide evidentiary
support for its opposition applies only when the moving
party has first made out a prima facie case for summary
judgment’’); Farrell v. Farrell, 182 Conn. 34, 38, 438
A.2d 415 (1980) (‘‘[w]hen a motion for summary judg-
ment . . . is filed and supported by affidavits and other
documents, [the nonmoving] party . . . must set forth
specific facts showing that there is a genuine issue for
trial, and if he does not so respond, summary judgment
shall be entered against him’’ (footnote omitted)). That
she failed to do. Because the plaintiff established a
prima facie case of fraudulent misrepresentation and
the defendant did not respond in any manner to the
motion for summary judgment, the court properly ren-
dered summary judgment on count one of the com-
plaint.
B
We turn next to the second count of the complaint,
which alleged statutory theft by false pretenses in viola-
tion of § 52-564. ‘‘[S]tatutory theft under . . . § 52-564
is synonymous with larceny [as defined in] General
Statutes § 53a-119 [and] includes various fraudulent
methods of taking property from its owner, including
when a person obtains property by false pretenses.’’
(Citation omitted; internal quotation marks omitted.)
Scholz v. Epstein, 341 Conn. 1, 18–19, 266 A.3d 127
(2021). A conviction for larceny by false pretenses
requires proof ‘‘(1) that a false representation or state-
ment of a past or existing fact was made by the accused;
(2) that in making the representation he knew of its
falsity; (3) that the accused intended to defraud or
deceive; (4) that the party to whom the representation
was made was in fact induced thereby to act to her
injury; and (5) that the false representation or statement
was the effective cause of the accused receiving some-
thing of value without compensation.’’ State v. Farrah,
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161 Conn. 43, 47, 282 A.2d 879 (1971). Both parties
acknowledge that the elements of a false pretenses
claim largely mirror those constituting a claim of fraud-
ulent misrepresentation.
For the same reasons and evidentiary basis outlined
in part I A of this opinion, we conclude that the court
properly determined that the plaintiff established a
prima facie case of statutory theft by false pretenses,
to which the defendant did not respond. Summary judg-
ment, therefore, was properly granted on the second
count of the operative complaint.
C
The third and final cause of action at issue is unjust
enrichment. ‘‘[R]ecovery under the doctrine of unjust
enrichment is essentially equitable, its basis being that
in a given situation it is contrary to equity and good
conscience for one to retain a benefit which has come
to him at the expense of another.’’ (Internal quotation
marks omitted.) Gagne v. Vaccaro, 255 Conn. 390, 408,
766 A.2d 416 (2001). As our Supreme Court has
explained, ‘‘[u]njust enrichment is, consistent with the
principles of equity, a broad and flexible remedy . . . .
Plaintiffs seeking recovery . . . must prove (1) that
the defendants were benefited, (2) that the defendants
unjustly did not pay the plaintiffs for the benefits, and
(3) that the failure of payment was to the plaintiffs’
detriment.’’ (Internal quotation marks omitted.) Geriat-
rics, Inc. v. McGee, 332 Conn. 1, 24–25, 208 A.3d
1197 (2019).
In light of the evidentiary basis submitted by the
plaintiff in support of the motion for summary judg-
ment, as discussed in part I A of this opinion, we con-
clude that the plaintiff established a prima facie case
of unjust enrichment. With no response from the defen-
dant setting forth specific facts or evidentiary support
to demonstrate that there was a genuine issue for trial;
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see Romprey v. Safeco Ins. Co. of America, supra, 310
Conn. 320–21; Farrell v. Farrell, supra, 182 Conn. 38;
the court properly granted summary judgment on count
five of the complaint.
II
The defendant also contends that the court improp-
erly rendered judgment in favor of the plaintiff as a
matter of law on the fraudulent misrepresentation, stat-
utory theft, and unjust enrichment counts of his com-
plaint. She claims that those counts all were predicated
on her adultery and, thus, are barred by § 52-572f.
The defendant concedes that she did not raise that
claim at any time before the trial court and now seeks
to prevail pursuant to the plain error doctrine. She main-
tains that the court committed plain error by rendering
summary judgment ‘‘on legislatively abolished claims
arising from the defendant’s alleged adultery.’’ We do
not agree.
‘‘[T]he plain error doctrine . . . is not . . . a rule of
reviewability. It is a rule of reversibility. That is, it is a
doctrine that this court invokes in order to rectify a
trial court ruling that, although either not properly pre-
served or never raised at all in the trial court, nonethe-
less requires reversal of the trial court’s judgment . . .
for reasons of policy. . . . [P]lain error review is
reserved for only the most egregious errors. When an
error of such a magnitude exists, it necessitates rever-
sal.’’ (Citation omitted; internal quotation marks omit-
ted.) State v. McClain, 324 Conn. 802, 813–14, 155 A.3d
209 (2017). ‘‘An appellate court addressing a claim of
plain error first must determine if the error is indeed
plain in the sense that it is patent [or] readily [discern-
ible] on the face of a factually adequate record, [and]
also . . . obvious in the sense of not debatable. . . .
This determination clearly requires a review of the plain
error claim presented in light of the record. Although
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a complete record and an obvious error are prerequi-
sites for plain error review, they are not, of themselves,
sufficient for its application. . . . [T]he plain error doc-
trine is reserved for truly extraordinary situations [in
which] the existence of the error is so obvious that it
affects the fairness and integrity of and public confi-
dence in the judicial proceedings. . . . [I]n addition to
examining the patent nature of the error, the reviewing
court must examine that error for the grievousness of
its consequences in order to determine whether reversal
under the plain error doctrine is appropriate. A party
cannot prevail under plain error unless it has demon-
strated that the failure to grant relief will result in mani-
fest injustice. . . . [An appellant] cannot prevail under
[the plain error doctrine] . . . unless he demonstrates
that the claimed error is both so clear and so harmful
that a failure to reverse the judgment would result in
manifest injustice.’’ (Citations omitted; emphasis in
original; internal quotation marks omitted.) Id., 812.
On appeal, the defendant claims that the trial court
should have sua sponte concluded that the plaintiff’s
actions for fraudulent misrepresentation, statutory
theft, and unjust enrichment were barred by § 52-572f,
and that its failure to do so constitutes plain error.
Section 52-572f provides: ‘‘No action may be brought
upon any cause arising from criminal conversation.’’
Historically, criminal conversation was a common-law
action synonymous with adultery. See, e.g., Tinker v.
Colwell, 193 U.S. 473, 481, 24 S. Ct. 505, 48 L. Ed. 754
(1904) (quoting William Blackstone for proposition that
criminal conversation is cause of action for ‘‘[a]dultery
. . . with a man’s wife’’ (internal quotation marks omit-
ted)); Marri v. Stamford Street Railroad Co., 84 Conn.
9, 14, 78 A. 582 (1911) (same); Oppenheim v. Kridel,
236 N.Y. 156, 166, 140 N.E. 227 (1923) (explaining that
‘‘adultery is the sole basis’’ of action for criminal conver-
sation); State ex rel. Golden v. Kaufman, 236 W. Va.
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635, 645, 760 S.E.2d 883 (2014) (‘‘criminal conversation
is, quite simply, adultery; they are one and the same’’);
cf. 14 Sen. Proc., Pt. 4, 1971 Sess., p. 1516, remarks of
Senator J. Edward Caldwell (‘‘[§ 52-572f] merely abol-
ishes an ancient action on the books’’). The plain intent
of the legislature in enacting § 52-572f was to prohibit
civil actions in this state for adultery.
The operative complaint in the present case does
not include a criminal conversation count, nor does it
include the word adultery. The three counts at issue
in this appeal—fraudulent misrepresentation, statutory
theft, and unjust enrichment—all are rooted in the
defendant’s knowingly false representations to the
plaintiff that he was the biological father of S and N.
The defendant nevertheless insists that those causes
of action contravene the proscription of § 52-572f and
argues that the trial court, in not enforcing that proscrip-
tion, committed an error that was obvious and not
debatable.
We cannot agree with that proposition. The defendant
has provided no authority in which a Connecticut court
has held that actions for fraudulent misrepresentation,
statutory theft, or unjust enrichment contravene § 52-
572f. Moreover, the defendant mistakenly suggests that
this is a question of first impression in this state. She
overlooks the fact that, in DiMichele v. Perrella, Supe-
rior Court, judicial district of Waterbury, Docket No.
CV-XX-XXXXXXX-S (February 23, 2011) (51 Conn. L. Rptr.
750), rev’d on other grounds, 158 Conn. App. 726, 120
A.3d 551, cert. denied, 319 Conn. 927, 125 A.3d 203
(2015), the Superior Court was presented with a strik-
ingly similar claim to that now raised by the defendant.
Like the present case, DiMichele involved a plaintiff
from whom the true paternity of two children he
believed to be his own was concealed ‘‘for nearly a
decade.’’ Id., 750. That plaintiff subsequently brought
an action against the defendant biological father of the
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children alleging, inter alia, fraud. In moving to strike
that count, the defendant argued that § 52-572f pre-
cluded that action. Id., 757. The court rejected that
contention and concluded that the plaintiff’s action for
fraud was ‘‘not barred by the legislature’s abolition of
the doctrine of criminal conversation as embodied in
[§] 52-572f.’’ Id., 759; accord Dufault v. Mastrocola,
Superior Court, judicial district of Hartford-New Brit-
ain, Docket No. CV-XX-XXXXXXX-S (March 1, 1996) (deny-
ing motion to strike predicated on § 52-572f regarding
common-law causes of action including negligence,
intentional infliction of emotional distress, breach of
fiduciary duty, and breach of contract arising from
defendant’s sexual relations with plaintiff’s wife).
The Superior Court’s conclusions in DiMichele and
Dufault comport with the reasoning of our Supreme
Court in Piccininni v. Hajus, 180 Conn. 369, 429 A.2d
886 (1980). The plaintiff in that case brought an action
for fraudulent misrepresentation, alleging that the
defendant had fraudulently represented to him ‘‘that
she would marry him and that they would occupy, as
their home, the house owned by the defendant [and
that] the plaintiff was induced to spend approximately
$40,000 in renovating, improving and furnishing [her]
house.’’ Id., 370. In response, the defendant filed a
motion to strike that count, claiming that it was barred
by General Statutes § 52-572b;15 the trial court agreed
and granted that motion. Id.
On appeal, the Supreme Court disagreed with that
determination. It first explained that ‘‘Heart Balm stat-
utes should be applied no further than to bar actions
for damages suffered from loss of marriage, humiliation,
and other direct consequences of the breach, and
15
General Statutes § 52-572b provides: ‘‘No action may be brought upon
any cause arising from alienation of affections or from breach of a promise
to marry.’’
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should not affect the rights and duties determinable
by common law principles.’’ (Emphasis added.) Id.,
372. The court then applied that precept to the facts of
the case, stating: ‘‘The plaintiff here is not asking for
damages because of a broken heart or a mortified spirit.
He is asking for the return of things which he bestowed
in reliance upon the defendant’s fraudulent representa-
tions. [Section 52-572b] does not preclude an action for
restitution of specific property or money transferred in
reliance on various false and fraudulent representation,
apart from any promise to marry, as to their intended
use. . . . [T]he gravamen of the [plaintiff’s claim] is
that [he] was induced to transfer property to the defen-
dant in reliance upon her fraudulent representations
that she intended to marry him and that the property
transferred would be used for their mutual benefit and
enjoyment. The plaintiff does not here assert that the
defendant wronged him in failing to marry him; rather,
he is asserting that the defendant wronged him in fraud-
ulently inducing him to transfer property to her. The
plaintiff’s complaint is based on what the defendant
did, and not on what she refused to do.’’ (Citation omit-
ted.) Id., 373–74. For that reason, the court concluded
that the motion to strike was improperly granted. Id.,
374.

The defendant claims that Piccininni has little rele-
vance to the present case, as it involved only § 52-572b.
We disagree. Early in its decision in Piccininni, our
Supreme Court made clear that all references therein
to § 52-572b would be to ‘‘the Act’’; id., 370; and the court
employed that particular diction whenever it discussed
§ 52-572b specifically. See id., 373. At the same time,
the court also referred to ‘‘Heart Balm Acts’’ and ‘‘Heart
Balm statutes’’ in its discussion of general principles
gleaned from other jurisdictions; see id., 371–72; and it
cited to cases that note that criminal conversation is
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among the heart balm statutes.16 See id., 372, citing In
re Marriage of Heinzman, 40 Colo. App. 262, 265, 579
P.2d 638 (1978), aff’d, 198 Colo. 36, 596 P.2d 61 (1979),
and Gill v. Shively, 320 So. 2d 415, 417 (Fla. App. 1975).
In our view, Piccininni is highly relevant to any discus-
sion of heart balm statutes such as §§ 52-572b and 52-
572f, as multiple Superior Court judges have held. See,
e.g., Caldarella v. Steigbigel, Superior Court, judicial
district of New Haven, Docket No. CV-XX-XXXXXXX-S
(August 14, 2013); DiMichele v. Perrella, supra, Superior
Court, Docket No. CV-XX-XXXXXXX-S; Dufault v. Mastro-
cola, supra, Superior Court, Docket No. CV-XX-XXXXXXX-
S. That authority strongly suggests, contrary to the con-
tention of the defendant, that actions for fraudulent
misrepresentation, statutory theft, and unjust enrich-
ment are not barred by § 52-572f in cases in which
a plaintiff seeks restitution for moneys transferred in
reliance on the defendant’s fraudulent representations,
as alleged in the operative complaint here, rather than
damages stemming from ‘‘a broken heart or a mortified
spirit.’’17 Piccininni v. Hajus, supra, 180 Conn. 373.
16
As numerous jurisdictions have observed, criminal conversation is con-
sidered a heart balm action. See, e.g., Tran v. Nguyen, 97 Cal. App. 5th 523,
533, 315 Cal. Rptr. 3d 607 (2023); Diaz v. Eli Lilly & Co., 364 Mass. 153,
160, 302 N.E.2d 555 (1973); G.A.W., III v. D.M.W., 596 N.W.2d 284, 289 (Minn.
App. 1999); Saunders v. Alford, 607 So. 2d 1214, 1215 (Miss. 1992); Segal
v. Lynch, 413 N.J. Super. 171, 182, 993 A.2d 1229 (App. Div.), cert. denied,
203 N.J. 96, 999 A.2d 464 (2010); Laidlaw v. Converge Midatlantic, 66 Pa.
D. & C. 5th 358 (2017); Campbell v. Robinson, 398 S.C. 12, 18, 726 S.E.2d
221 (2012); Felsenthal v. McMillan, 493 S.W.2d 729, 730 (Tex. 1973); Koestler
v. Pollard, 162 Wis. 2d 797, 802, 471 N.W.2d 7 (1991); cf. Brown v. Strum,
350 F. Supp. 2d 346, 348–49 (D. Conn. 2004) (criminal conversation is com-
mon-law heart balm action under Connecticut and New York law); W. Keeton
et al., Prosser and Keeton on the Law of Torts (5th Ed. 1984) § 124, p.
929 (discussing actions for alienation of affection, seduction, and criminal
conversation and noting that compensation for such actions ‘‘has derisively
been called ‘heart balm’ ’’). In her principal appellate brief, the defendant
acknowledges that ‘‘other jurisdictions . . . have abolished criminal con-
versation and other ‘heart balm’ actions . . . .’’
17
In our view, the lesson of Piccininni is that a plaintiff may state a
legally viable claim for fraudulent misrepresentation and recover restitution,
even in factual scenarios that appear to implicate heart balm statutes such
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In addition, it is well established that the courts of
this state are entitled to rely on representations made
by the parties before it. See State v. Pires, 310 Conn.
222, 238, 77 A.3d 87 (2013) (‘‘the trial court may rely
on factual and legal representations by counsel to the
court, which are then attributable to and binding on
the attorney’s client’’). On October 19, 2018, the defen-
dant filed an application to transfer the present action
to the complex litigation docket, in which she averred
that ‘‘[t]his is a fraud case seeking $100 million in dam-
ages, trebled to $300 million. [The plaintiff] alleges that
[the defendant] made false representations to him
regarding the paternity of her son and one of her daugh-
ters . . . and that, in reliance on those allegedly false
statements, he made transfers to her totaling at least
$100 million over the course of a decade.’’ In that plead-
ing, the defendant made no mention of adultery, crimi-
nal conversation or the like. Rather, she represented
to the court that this was ‘‘a fraud case’’ that concerned
false representations made to the plaintiff regarding his
paternity of her children. Under Connecticut law, we
presume that the trial court was aware of the contents
of that pleading. See, e.g., Brookfield v. Candlewood
Shores Estates, Inc., 201 Conn. 1, 4–6, 513 A.2d 1218
(1986) (appellate court presumes that trial court consid-
ered pleadings in file before it); A. Secondino & Son,
Inc. v. LoRicco, 19 Conn. App. 8, 13, 561 A.2d 142 (1989)
as §§ 52-572b and 52-572f. Other jurisdictions have reached such a result.
See, e.g., G.A.W., III v. D.M.W., 596 N.W.2d 284, 289 (Minn. App. 1999)
(plaintiff’s claims for fraud based on misrepresented paternity were not
barred by legislature’s abolition of criminal conversation); Hodge v. Craig,
382 S.W.3d 325, 342 (Tenn. 2012) (concluding that ‘‘public policy does not
prevent the former spouse of a child’s mother from pursuing a common-
law damage claim based on her misrepresentations regarding the identity
of the child’s biological father’’); cf. Tran v. Nguyen, 97 Cal. App. 5th 523,
525–26, 315 Cal. Rptr. 3d 607 (2023) (concluding that plaintiff’s attempt to
recover extortion payments made to defendant to prevent disclosure of
parentage over his ‘‘child birthed by another woman during his marriage’’ did
not violate heart balm statute prohibiting actions for criminal conversation).
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(‘‘we will presume that the trial court was aware of the
contents of the [case] file’’). The defendant’s affirmative
representation that this is a fraud case premised on her
false representations regarding the plaintiff’s pater-
nity—and her subsequent silence in the face of a motion
for summary judgment—further undermines her claim
that the court should have sua sponte invoked § 52-
572f to bar the plaintiff’s claims.
To be clear, the issue before us is not whether § 52-
572f operates to bar actions for fraudulent misrepresen-
tation, statutory theft, and unjust enrichment. The issue
is whether the defendant has sustained her burden of
establishing that, when the plaintiff’s motion for sum-
mary judgment was before the trial court, it was obvious
and indisputable that § 52-572f so operates in the partic-
ular context of this case. In this regard, we are mindful
that ‘‘[p]lain error is a doctrine that should be invoked
sparingly.’’ (Internal quotation marks omitted.) State v.
Jamison, 320 Conn. 589, 596, 134 A.3d 560 (2016). The
defendant’s burden under the first prong of that doc-
trine is to demonstrate the existence of an error that
is ‘‘obvious in the sense of not debatable. . . . [T]his
inquiry entails a relatively high standard, under which
it is not enough for the defendant simply to demonstrate
that [her] position is correct. Rather, the party seeking
plain error review must demonstrate that the claimed
impropriety was so clear, obvious and indisputable as
to warrant the extraordinary remedy of reversal.’’
(Internal quotation marks omitted.) State v. Coccomo,
302 Conn. 664, 685, 31 A.3d 1012 (2011). Our Supreme
Court has succinctly described the first prong as requir-
ing proof of ‘‘an error so obvious on its face that it is
undebatable.’’ State v. McClain, supra, 324 Conn. 820
n.13. On the record before us, we conclude that the
defendant has not met that burden.
The judgment is affirmed.
In this decision the other judges concurred.