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agreement, an action that amounted to their consent to the waiver
of those requirements. He argues that the assignment and
assumption agreement was not “backdated”, i.e., it “was not a
document * * * [attempting] to change the past or * * * to
misrepresent the past”, but, rather, “was * * * created to
formalize informal transactions that had occurred in the past”.
He also argues that the effective date provision is not an
example of mutual mistake that would otherwise permit petitioners
to introduce parol evidence to establish the actual effective
date of Dr. Joffe’s transfer of a 10-percent interest in the LLC
to Ms. Moore; and he argues that the LLC’s 1998-2000 increased
distributions to Dr. McKernan and Ms. Moore were not simply a
monetary quid pro quo for the use of LLC assets as collateral for
the discharge of Dr. Joffe’s bank debt related to his failed
Cincinnati Surgery Center. Rather, he argues that those
distributions corroborated a prior increase in the LLC membership
interests of those individuals.
D. Analysis
1. Introduction
Although each party can point to evidence supporting that
party’s view regarding the date upon which Ms. Moore’s membership
interest in the LLC increased from 2 percent to 12 percent, we
find that a preponderance of the evidence supports respondent’s
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