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mistake] will always be cautiously exercised, and to justify it
the evidence must be clear, unequivocal, and decisive.”).
In this case, there is not “clear, unequivocal, and
decisive” evidence of mutual mistake as required by Georgia law.
The assignment and assumption agreement plainly states that it is
to be effective as of January 1, 1997. It is a brief (two-page)
agreement, which makes it unlikely that Ms. Moore was distracted
by excessive verbiage so that she failed to notice the effective
date provision in the very first sentence of the agreement.
Dr. Joffe testified that he and Ms. Moore agreed to his
transfer of a 10-percent membership interest in the LLC to her in
1997 and that, beginning in 1997, the LLC distributions would
reflect that shift in membership interest. T. Mills Fleming (Mr.
Fleming), an attorney representing Ms. Moore and Dr. McKernan in
connection with the sale of their membership interests to
Surgicoe, testified that the assignment and assumption agreement
was drafted in order to verify to Surgicoe, in writing, that the
proceeds from the sale of the LLC membership interests should be
allocated on a 68-20-12-percent basis among Drs. Joffe and
McKernan and Ms. Moore, respectively. He further testified that
the January 1, 1997, effective date was inserted “because that’s
what the parties represented was the effective date of the
transfer of those interests from 88-10-2 to the 68-20-12.”
Kenneth R. Schwartz (Mr. Schwartz), at the time an associate at
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