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view that Ms. Moore owned a 12-percent membership interest in the
LLC during the years in issue, 1999 and 2000.
2. The Assignment and Assumption Agreement
The assignment and assumption agreement does not set forth
an execution date. Rather, it states that it “is made and
entered into and effective as of the 1st day of January, 1997 by
and among * * * [the LLC members]”.
Petitioners argue that the execution date of the agreement
(alleged by petitioners, without dispute by respondent, to be
sometime during July 2000, when the agreement was entered into in
connection with the closing of the sale of the membership
interests in the LLC to Surgicoe) is its effective date. They
cite Georgia caselaw, which permits the introduction of parol
evidence to establish the actual date of execution, and they rely
upon both Georgia statutory law and caselaw, which permit
equitable reformation of a contract in order to conform with the
true intent of the parties where there has been a mutual mistake
in the drafting of the contract. Respondent disputes the
applicability of both lines of authority.
a. Enforceability of the Effective Date Provision
(1) Governing Principles of Georgia Law
As noted supra, the assignment and assumption agreement
specifically states that it is to be “governed by and construed
in accordance with Georgia law.” Under Georgia law, it is clear
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