This is a special action from a judgment of the Superior Court of Maricopa County granting a motion to dismiss the third party complaint of the defendant, Spur Feeding Company, predecessor of Spur Industries, Inc., against the respondent, Del E. Webb Development Company.
We are asked to determine whether a previous decision of this court between the defendant Spur and the third party defendant, Del Webb, is res judicata as to the parties and the facts in this case.
The facts necessary for determination of this matter on appeal are as follows. On 17 March 1972, this court rendered its decision in the matter of Spur Industries, Inc. v. Del E. Webb Development Company, 108 Ariz. 178, 494 P.2d 700 (1972), rehearing denied 1972. For a more complete factual background the reader is directed to that opinion.
In that opinion we stated that the central question before the court was: “[M]ay the developer of a completely new town or urban area in a previously agricultural area be required to indemnify the operator of the feedlot who must move or cease operations because of the presence of the residential *106area created by the developer?” We then went on to state:
“ * * * Spur is required to move not because of any wrongdoing on the part of Spur, but because of a proper and legitimate regard of the courts for the rights and interests of the public.
“Del Webb, on the other hand, is entitled to the relief prayed for (a permanent injunction), not because Webb is blameless, but because of the damage to the people who have been encouraged to purchase homes in Sun City. It does not equitably or legally follow, however, that Webb, being entitled to the injunction, is then free of any liability to Spur if Webb has in fact been the cause of the damage Spur has sustained. It does not seem harsh to require a developer, who has taken advantage of the lesser land values in a rural area as well as the availability of large tracts of land on which to build and develop a new town or city in the area, to indemnify “those who are forced to leave as a result.
“Having brought people to the nuisance to the foreseeable detriment of Spur, Webb must indemnify Spur for a reasonable amount of the cost of moving or shutting down. * * * ” Spur Industries, Inc. v. Del E. Webb Development Company, supra, 108 Ariz. at 186, 494 P.2d at 708.
Pending at the time of the above action was the suit in the instant case, Andras, et al. v. Spur Feeding, et al., which was a suit by numerous property owners in the Sun City area seeking damages from Spur as the result of the cattle feeding operation. After the opinion was rendered in this court in Spur v. Webb, supra, Spur filed a third party complaint against Del E. Webb Development Company to obtain indemnity from Webb for damages for which Spur might be held liable to the over 400 plaintiffs. Upon motion of Webb, the third party complaint was dismissed with prejudice by the court with a finding that there was no just reason for delay. Rule 54(b), Rules of Civil Procedure, 16 A.R.S. We granted the petition for special action as we believed there was no adequate or speedy remedy by way of appeal.
The respondent Webb contended in the trial court and contends here that the previous opinion of the court in Spur v. Webb, supra, is res judicata as to the facts in this case and that this court’s previous decision resolved against Spur “the issues which Spur has attempted to reassert by way of its third party complaint.” We disagree.
Our Court of Appeals has stated:
“ * * * Under the doctrine of res judicata an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction is conclusive as to every point which could have been raised by the record, and decided with respect to the parties thereto. Day v. Wiswall’s Estate, 93 Ariz. 400, 381 P.2d 217 (1963). The doctrine of res judicata binds the same parties standing in the same capacity in the subsequent litigation on the same cause of action, not only upon the facts actually litigated, but also upon those points which might have been (even though not expressly) litigated. A. L. Kornman Co. v. Metropolitan Government, etc., 216 Tenn. 205, 391 S.W.2d 633 (1965). Generally, there must be mutuality, not only of the parties, but of the issues to invoke the doctrine of res judicata.” Di Orio v. City of Scottsdale, 2 Ariz.App. 329, 330, 408 P.2d 849, 850 (1965).
A reading of the opinion in Spur v. Webb, supra, leads us to the inescapable opinion that it is not res judicata as to the parties before the court in the instant case.
The previous opinion of this court in Spur v. Webb, supra, concerned itself with two parties and only two questions:
1. whether Spur’s operation should be enjoined, and,
2. if so, who was going to pay for the cost of closing or moving.
*107In the present case before the court, we are concerned primarily with:
1. whether each of the over 400 plaintiffs have sustained any damages as a result of Spur’s previous operation, and
2. if so, whether Webb’s conduct as to each of the individual plaintiffs is such that Webb should be required to indemnify Spur as to any damages the court might find the plaintiffs are entitled to receive.
, Not only are the parties different, but the facts of the case are different than those of the prior case of Spur v. Webb, supra. Defendant Spur is entitled to have litigated the conduct of Webb as to each of the plaintiffs and to have the question of indemnity litigated as to each of them.
' The judgment of the trial court dismissing the motion of Spur to file a third party complaint should be set aside.
Judgment reversed.
HAYS, C. J., and STRUCKMEYER, and LOCKWOOD, JJ„ concur.