As to a bona fide dispute, there must have existed prior to the tender of the payment a "dispute by the debtor as to the correctness of the amount of the debt." Rafizadeh v. KR Snellville, LLC, 280 Ga. App. 613, 615, 634 S.E.2d 406, 409 (2006) (quoting Kendrick v. Kalmanson, 244 Ga. App. 363, 365, 534 S.E.2d 884 (2000)). Both parties must have understood and been aware the dispute existed; the dispute cannot be confined to the mind of the sender of the payment.

Thus, the trial court erred in granting summary judgment to the City as to the December 2005 and November 2006 promotions on the basis that they were barred by the doctrine of res judicata. See Waggaman v. Franklin Life Ins. Co., 265 Ga. 565 (1) ( 458 SE2d 826) (1995) ("[r]es judicata is an affirmative defense which must be established by the pleader") (citation omitted); Rafizadeh v. KR Snellville, LLC, 280 Ga. App. 613, 617 (3) ( 634 SE2d 406) (2006) (defendant bears the burden of proof in establishing res judicata). See Rafizadeh, 280 Ga. App. at 617 (3).

For a dispute to be bona fide, typically "both parties must have understood and been aware that the dispute existed prior to the tender of the reduced payment." Rafizadeh v. KR Snellville, LLC, 634 S.E.2d 406, 409 (Ga.Ct.App. 2006). "[T]he bona fide dispute must be a dispute between the parties and not one confined to the mind of the sender of the check."

Accordingly, there must be a bona fide dispute between the parties that necessitated the accord and satisfaction in the first place. See Rafizadehk v. KR Snellville, LLC, 280 Ga.App. 613, 634 S.E.2d 406, 408–409 (2006) (holding that for accord and satisfaction to apply, “that dispute must be bona fide, meaning that both parties must have understood and been aware that the dispute existed prior to the tender of the reduced payment”). Here, Southern Pilot argues that there is no evidence of a bona fide dispute between the parties until the alleged tender on September 16, 2011. Before that time, according to Southern Pilot, it had simply cancelled the policy and notified Defendants of the cancellation.

(Citations and punctuation omitted.) Rafizadeh v. KR Snellville, LLC, 280 Ga. App. 613 (634 SE2d 406) (2006). In this case, the record shows that on November 5, 2010, following the foreclosure, the Bank's attorney notified the Drurys that they had 30 days to vacate the premises and that they would be considered trespassers after that date.

For this provision to apply, however, the prior judgment must be an adjudication upon the merits. See Rafizadeh v. KR Snellville, 280 Ga.App. 613, 617–618(3), 634 S.E.2d 406 (2006). There are circumstances under which a voluntary dismissal by a plaintiff may operate as an adjudication upon the merits.

“In order for the doctrine to apply, three prerequisites must be satisfied: (1) identity of the parties or their privies; (2) identity of the cause of action; and (3) previous adjudication on the merits by a court of competent jurisdiction.” Rafizadeh v. KR Snellville, LLC, 280 Ga.App. 613, 617(3), 634 S.E.2d 406 (2006) (citation omitted). We conclude that res judicata has no application in this case because the question presented in the second petition as to United Investment is materially different from the question presented in the first petition, and there is, therefore, no identity of the cause of action.

See Hawthorne Grading c. v. RampleyFranklin v. Cummings ("since there is no evidence of a pre-existing bona fide controversy or of an independent agreement, plaintiffs acceptance of the checks, even with notice of the conditional language, does not . . . constitute an accord and satisfaction"). Rafizadeh v. KR Snellville, LLC, 280 Ga. App. 613, 615 (1) ( 634 SE2d 406) (2006).Hawthorne Grading c. v. Rampley, 252 Ga. App. 771, 772 ( 556 SE2d 912) (2001).

Financial Bldg. Consultants v. St. Charles Mfg. Co., 145 Ga. App. 768, 770-771 (2) ( 244 SE2d 877) (1978). See also SAKS Assoc. v. Southeast Culvert, 282 Ga. App. 359, 365 (3) ( 638 SE2d 799) (2006); Rafizadeh v. KR Snellville, 280 Ga. App. 613, 616 (2) ( 634 SE2d 406) (2006). See, e.g., Infinite Energy v. Ga. Public Svcs. Comm., 257 Ga. App. 757, 759 (1) ( 572 SE2d 91) (2002) (absent affirmative evidence showing that the trial court applied the wrong standard of review, we will not presume error).

Id. at 785-787 (III) (A) (1). Nor did the Eleventh Circuit consider Tanner's claims that the ordinance violated the Georgia Constitution, since the federal district court had previously dismissed those claims without prejudice. See Tanner Advertising Group v. Fayette County, 2004 U. S. Dist. LEXIS 30087 (IV) (N.D. Ga. May 25, 2004) (declining to exercise supplemental jurisdiction over Tanner's claims that the ordinance violated the Georgia Constitution); see also Rafizadeh v. KR Snellville, 280 Ga. App. 613, 617-618 (3) ( 634 SE2d 406) (2006) (reversing trial court's finding that claim was barred by res judicata because prior dismissal without prejudice was not an adjudication on the merits). The federal decisions in related matters thus provide no support for the trial court's conclusion that the appellants' damages claims are moot.