## Facts

- Builders Square, Inc. and K Mart Corp. (collectively, BSI) retained The Network Group, Inc. (Network) as a broker to sell or sublease closed K-Mart stores, including Ohio properties.
- Network entered a separate written commission agreement with Reisenfeld & Company (Reisenfeld), an Ohio-licensed broker representing Dick’s Clothing & Sporting Goods (Dick’s), providing that Network would pay Reisenfeld $1 per square foot if Dick’s reached a deal with BSI.
- Dick’s entered assignment and assumption agreements to sublease two Ohio stores from BSI.
- The sublease documentation stated that BSI would pay a commission to Network and that Network would pay a portion to Reisenfeld pursuant to Network and Reisenfeld’s separate written agreement.
- Network’s sole shareholder defrauded BSI; BSI later obtained a Texas judgment against Network and stopped paying further commissions to Network.
- Reisenfeld claimed it was owed $160,320 in commissions; it obtained a default judgment against Network but pursued BSI for payment under unjust enrichment and third-party beneficiary theories.
- The district court granted summary judgment to BSI on both claims; Reisenfeld appealed as to BSI.

## Issues

1. Whether, under Ohio law, Reisenfeld could recover from BSI in quasi-contract (unjust enrichment) despite having a commission agreement with Network and no direct contract with BSI.
2. Whether, under Ohio law, Reisenfeld was an intended third-party beneficiary of the BSI–Dick’s sublease agreements and could sue BSI for the commission.

## Decision

- The Sixth Circuit affirmed summary judgment for BSI on the third-party beneficiary claim.
- The Sixth Circuit vacated summary judgment for BSI on the quasi-contract (unjust enrichment) claim and remanded for further proceedings.
- The court held there was evidence that Reisenfeld conferred a benefit on BSI by procuring subtenants, and BSI knew of that benefit.
- The court held that the existence of Reisenfeld’s contract with Network did not, as a matter of law, bar an unjust enrichment claim against BSI, a nonparty to that contract.
- The court concluded that whether BSI’s retention of the benefit without payment was unjust could not be resolved on summary judgment given the circumstances and factual disputes.

## Legal Principles

- Under Ohio law, unjust enrichment requires: (1) a benefit conferred by the plaintiff on the defendant, (2) the defendant’s knowledge of the benefit, and (3) retention of the benefit under circumstances making nonpayment unjust.
- Unjust enrichment in Ohio does not require improper conduct by the enriched party.
- A contract between the plaintiff and a third party does not automatically preclude a quasi-contract claim against a different party who received the benefit.
- Under Ohio law, a third party may enforce a contract only if the contract was made with intent to benefit that party; a merely incidental benefit or a passing reference to the third party is insufficient.
- A contract’s reference to a separate agreement allocating commissions tends to show the parties did not intend to create direct contractual rights in the referenced broker against the owner.

## Conclusion

The Sixth Circuit held that Reisenfeld could not enforce the BSI–Dick’s subleases as an intended third-party beneficiary, but it could pursue an Ohio unjust enrichment claim against BSI because BSI allegedly received and knowingly retained the benefit of Reisenfeld’s brokerage services without payment; the unjust enrichment claim required further proceedings on remand.


Reisenfeld & Co. v. Network Grp., Inc., 277 F.3d 856 (6th Cir. 2002)