Marafi v. El Achchabi

316 A.3d 798

225 Conn.App. 415

Sadiq MARAFI

v.Hind EL ACHCHABI et al.

(AC 45745)

Appellate Court of Connecticut.

Argued January 25, 2024

Officially Released May 14, 2024

John R. Weikart, with whom were James P. Sexton, and, on the brief, Megan L. Wade, Hartford, for the appellant (named defendant).

Jonathan M. Freiman, New Haven, with whom was Emmett F. Gilles, for the appellee (plaintiff).

Elgo, Suarez and Eveleigh, Js.

ELGO, J.

₄₁₇The 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 determined that no genuine issue of material fact existed with respect to the plaintiff’s actions for fraudulent misrepresentation, statutory theft, and unjust enrichment, and (2) committed plain error in granting the plaintiff’s motion for summary judgment because those actions were predicated on adultery in contravention ₄₁₈of 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 pleadings of the parties and the affidavits and other proof submitted by the plaintiff, viewed in the light most 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 Ambassador 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 relationship, 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 ₄₁₉Al 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 used to purchase real property known as 31 North Porchuck 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 established 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 million 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 represented to the plaintiff that he was the biological father, ₄₂₀though she knew that was false. As the defendant admitted in her June 6, 2019 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 defendant gave birth to a daughter, N, at a hospital 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 community.

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 ₄₂₁a, trial, a Moroccan court found the defendant guilty of intentional fabrication of a document comprising false information, illegally obtaining an administrative document by presenting false information, intentional use of a forgery, and adultery.⁶

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 November 8, 2018. The defendant thereafter filed a series of requests to revise and multiple objections to the plaintiff’s interrogatories and requests for production.

On June 14, 2019, the plaintiff filed the operative complaint, his second amended complaint, which contained 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 emotional 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 defendant file an ₄₂₂answer to any of the complaints filed by the plaintiff, including the operative one.

On July 16, 2019, the law firm representing the defendant filed a motion to withdraw its appearance for cause, which the court granted on August 16, 2019.⁷ 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 accompanied by a memorandum of law and fifty exhibits, which included affidavits from the plaintiff and Attorney Richard Luedeman, bank records documenting millions 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 objection to the plaintiff’s motion for summary judgment.¹⁰

₄₂₃The 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 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 liability for the claims of [statutory] theft, unjust enrichment and [fraudulent] misrepresentation. So I don’t need … further argument on that. … What is unclear to me is the amount of [money that] was transferred" 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....