COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68518 : ANGELO VAGIANOS, ET AL. : : JOURNAL ENTRY Plaintiffs-Appellees : : and -vs- : : OPINION : METROPOLIS ENTERPRISES, INC. : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OCTOBER 12, 1995 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 226534 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiffs-Appellees: For Defendant-Appellant: MARVIN N. HALPERN, ESQ. DAVID M. MAISTROS, ESQ. 815 Superior Avenue, Suite 1623 800 Standard Building Cleveland, Ohio 44114-2702 Cleveland, Ohio 44113 -2- PATRICIA ANN BLACKMON, J.: Defendant-appellant Metropolis Enterprises, Inc. appeals the judgment entered in favor of plaintiffs-appellees, Angelo Vagianos, Evy Vagianos, and William Mouzakis, and assigns the following errors for our review: I. THE TRIAL COURT ERRED BY GRANTING THE PLAIN- TIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS WHEN THE BRIEF SUBMITTED BY PLAINTIFFS IN LIEU OF TRIAL FAILED TO CONTAIN ANY AFFIDAVITS OR DOCUMENTARY EVIDENCE WHICH WOULD SUPPORT THE COURT'S RULING. II. THE TRIAL COURT ERRED BY GRANTING THE PLAIN- TIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS WHEN THE PLAINTIFF ADMITTED THAT THE MAJORITY OF THE CONSIDERATION FOR THE PROMISSORY NOTE WAS ILLEGAL. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. On March 19, 1991, the President and Secretary-Treasurer of Metropolis Enterprises, Inc. executed a promissory note and agreed to pay Angelo Vagianos, Evy Vagianos, and William Mouzakis the sum of $480,000 in the form of monthly installment payments. The promissory note, in pertinent part, provided as follows: "The payments made hereon shall apply first upon indebtedness due the payees in the sum of $163,719 and second upon the purchase price of corporate shares of stock. This note is given in part for the unpaid balance owing to the payees for loans in the sum of $163,719 and the balance is due and owing for the purchase of corporate shares of Metropolis Enterprises, Inc. sold to the makers hereof." -3- The note further provided for judgment by confession under R.C. 2323.12 and 2323.13. On February 6, 1992, Angelo Vagianos, Evy Vagianos, and William Mouzakis filed a complaint seeking a cognovit note judgment and a warrant of attorney to confess judgment. The trial court issued a cognovit note judgment in their favor. Metropolis Enterprises, Inc. moved to vacate the judgment under Civ.R. 60(B) and asserted the portion of the judgment pertaining to the redemption of corporate stock was unenforceable under R.C. 1701.35(B). The motion to vacate was granted. By agreement, the court permitted the parties to submit briefs in lieu of trial. Angelo Vagianos, Evy Vagianos, and William Mouzakis moved for judgment on the pleadings in the amount of $163,719 plus prejudgment interest. They asserted that the portion of the note pertaining to loan indebtedness was enforceable. Metropolis Enterprises, Inc. moved for judgment on the pleadings. It asserted that the entire note was unenforceable. The trial court granted judgment on the pleadings in favor of Angelo Vagianos, Evy Vagianos, and William Mouzakis in the amount of $163,719, and this appeal followed. The standard of review for judgments on the pleadings is plenary. "Pursuant to Civ.R. 12(C), the pleadings must be construed liberally and in a light most favorable to the party against whom the motion is made along with the reasonable inferences drawn therefrom." Burnside v. Leimbach (1991), 71 Ohio App.3d 399, 402. "A Civ.R. 12(C) motion presents only questions of -4- law, and it may be granted only when no material factual issues exist, and the movant is entitled to judgment as a matter of law. Id. at 403. See, also, Peterson v. Teodosio (1973), 34 Ohio St.2d 161. In its first assignment of error, Metropolis asserts the trial court erred in granting the plaintiffs' motion for judgment on the pleadings because they failed to support their motion with affidavits or any documentary evidence of consideration for the note. This argument has no merit. Civ.R. 12(C) presents only questions of law and determination of a motion for judgment on the pleadings is restricted solely to the allegations in the pleadings. Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 166. Accordingly, affidavits and other evidence outside the claims set forth in the pleadings would not be considered in ruling upon a motion for judgment on the pleadings. Furthermore, consideration is clearly set forth in the promissory note attached to the complaint. It provides "indebtedness [is] due the payees for loans in the sum of $163,719." In its second assignment of error, Metropolis asserts the trial court erred because the provisions of the promissory note are not divisible; therefore, the entire agreement is unenforceable. We disagree. "Although there is no exact definition to determine when a contract is 'divisible' or 'entire,' a contract is generally not severable or divisible when its purpose, terms and nature contemplate that its parts and consideration shall be interdepen- -5- dent and common to each other." DePugh v. Mead Corp. (1992), 79 Ohio App.3d 503, 513. If "[e]very part of the consideration goes equally to the whole promise***," and part of it is against public policy, then the whole promise must fail, although the subject of the agreement may consist of several distinct and wholly indepen- dent items. Hazelton v. Sheckels (1906), 202 U.S. 71 at 78 (held agreement to sell tract of land is unenforceable notwithstanding the fact that legitimate services had been rendered in consideration of agreement). See, also, DePugh at 513. However, "[w]here an agreement founded on a legal considera- tion contains several promises, or a promise to do several things, and a part only of the things to be done are illegal, the promises which can be separated, or the promise, so far as it can be separated, from the illegality, may be valid." Suesskind v. Wilson (1931), 124 Ohio St. 54 at the syllabus. See, also, Preston v. First Bank of Marietta (1983), 16 Ohio App.3d 4, 8 (held mortgage was enforceable at original interest rate notwithstanding unenforceable variable interest rate clause). In this case, the note specifically states the first payments apply only to indebtedness due the payees for a loan in the sum of $163,719. The subsequent payments only apply to the stock purchase. The consideration is separate and performance with respect to the installment payments is separated by order of priority. Thus, the enforceable and the unenforceable provisions of the promissory note are clearly divisible. Therefore, as a -6- matter of law, the promissory note executed on behalf of Metropolis 1 Enterprises, Inc. was enforceable for the sum of $163,710. Judgment affirmed. 1 It is important to note a trial court has the authority to alter incorrect items in a confession of judgment before entering judgment thereon. Milstein v. Northeast Ohio Harness (1986), 30 Ohio App.3d 248, 252. The trial court, sub judice, altered the amount of the confession of judgment from $480,000 to $163,710. -7- It is ordered that Appellees recover of Appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. SPELLACY, P.J., and NAHRA, J., CONCUR. PATRICIA ANN BLACKMON JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- .