{ΒΆ 22} Sterling seeks to distinguish its situation from the general prohibition against restitution because Main Event retained nearly $2 million between the retainage and the value of the unpaid contract price at the time Omni breached, without consideration of subsequent events. Sterling claims that Main Event's payments to release the mechanic's liens to the numerous other unpaid subcontractors and expenditures to finalize the project should not impact Sterling's claim for unjust enrichment, citing Wickford Metal Prods. v. Tri-Village Church of Christ, 5th Dist. Licking No. 98CA47, 1998 Ohio App. LEXIS 6499, 1 (Dec. 1, 1998). In Wickford, even though the property owner paid more to third parties to complete the project after the general contractor breached its contracts with the owner and a subcontractor
Eureka cites to several cases from Ohio appellate courts which have held that once payment is made to a contractor, the subcontractor cannot collect from the owner. See Wickford Metal Products v. Tri-Valley Church, 5th Dist. Licking No. 98CA47, 1999 WL 3973 (Dec. 1, 1998); Steel Quest v. City Mark Construction Services, Inc., 1st Dist. Hamilton No. C-960994, 1997 WL 674614 (Oct. 31, 1997.) Because Eureka paid Moosehead's invoice to CSP, Eureka argues that Ohio law prohibits Moosehead from now collecting any unpaid balance from Eureka.
In order to recover under a theory of unjust enrichment, a plaintiff must prove by a preponderance of the evidence: (1) the plaintiff conferred a benefit upon the defendant, (2) the defendant had knowledge of such benefit, and (3) for him to retain that benefit under circumstances where it would be unjust for him to retain that benefit without payment. Wickford Metal Products v. Tri-Village Church of Christ, Inc. (Dec. 1, 1998), Licking App. No. 98CA47, unreported, at 3, citing Hambleton v. R.C. Barry Corp. (1984), 12 Ohio St.3d 179, 183. See also, Hummel v. Hummel (1938), 133 Ohio St. 520, 525.