dissenting. Beginning with Drew v. First Federal Savings and Loan Association, 271 Ark. 667, 610 S.W.2d 876 (1981), through our most recent case, Lemarco, Inc. v. Wood, 305 Ark. 1, 804 S.W.2d 724 (1991), this court has recognized the broad discretion of the trial judge in deciding whether to certify a case as a class action. Even though we saw a need to liberalize class actions in Arkansas in International Union of Electrical, Radio and Machine Workers v. Hudson, 295 Ark. 107, 747 S.W.2d 81 (1988), we explained that the court’s broad discretion cuts both ways:
[t]he trial judge in this case could have refused to certify that action as a class action, and we might well have upheld him in that exercise of his broad discretion. Id at 121, 747 S.W.2d at 88-89.
If the principle of “broad discretion” is to have any substance, the trial court’s decision to deny class certification in this case should be affirmed.
The majority is concerned that if a trial court’s discretion is too broad there is the possibility it cannot be reviewed on appeal. I would not propose giving trial courts carte blanche, only that the trial court here did not abuse its broad discretion in denying class certification.
There was no actual chemical spill from the tank car, therefore, the appellants’ claims are limited to the period of time they were evacuated from their homes or businesses. They allege expenditures were incurred for food, clothing, shelter, and medical treatment and that they suffered pain and mental anguish. At the class certification hearing the first witness was Janet Jones, an employee of the McHenry Law Firm. She testified that she had been working on a list of people who believed they had been harmed by the evacuation. Her list included over 5,000 people and she had personally talked with about 1,000 of them. She said that one complaint was for fright attributable to a chemical leak and worry about getting out of the area. Some individuals believed they smelled a dangerous chemical. Others indicated they had experienced physical problems such as a runny nose, watery eyes, sore throat and headaches, however, the class attorney testified that claims due to chemical exposure would not be included in the suit. Jones further testified that some potential class members claimed lost wages ranging from a few hours to the entire day. Jones also knew of one man who stayed at a motel and others who bought meals at restaurants. Athena Mae Wilson, an evacuee, testified that her only claim was for transportation costs for a neighbor to drive her from Eastgate Terrace to Pulaski Heights in Little Rock. The class representatives, Wilma and Charles Summons, alleged that their claims were typical of the class members, yet Mrs. Summons answered the following questions in this manner:
Q: Did any of the people that you talked to indicate to you that [they were forced to seek medical treatment?]
A: None that I talked to.
* * *
Q: Did anyone lose wages?
A: I don’t know that.
* * *
Q: Were some of the people forced to spend money for motels and hotels?
A: If they didn’t have anywhere else to go, I’m quite sure they did.
Q: Of your own knowledge, do you know whether they did?
A: I don’t know that.
Q: Do you know whether people were forced to spend money for food?
A: I was.
Q: What about other people?
A: I didn’t have dinner with anybody else, I don’t know.
Although party representative Charles Summons was not at the hearing, in his deposition he testified that besides the cost of the evening meal his only injury was “inconvenience.” The final witness was Sam Martin who testified merely that the police advised him to leave the area, so he drove his truck to his son’s house.
The trial judge assessed the witnesses firsthand and concluded this was not manageable as a class suit. I agree. The majority is now directing the judge to hear this as a class action. Heretofore, we have reversed the trial court’s decision regarding class certification only once and that was where the court granted certification. See Ford Motor Credit Co. v. Nesheim, 278 Ark. 78, 696 S.W.2d 732 (1985). Thus we have never previously ordered a trial court to grant cértification. This is not to imply there should never be a reversal of an order denying class certification, only to observe that we are deviating from prior case law in a situation that clearly supports the application of our principle of broad discretion in class action certification. In Looper v. Madison Guaranty Savings & Loan Ass’n., 292 Ark. 225, 729 S.W.2d 156 (1987), we wrote:
When we examine a discretionary decision made by a chancellor, the question is not what we would have done, but whether, as a matter of law, discretion was abused—was the judgment call arbitrary or groundless? Keirs v. Mt. Comfort Enterprises, et al., 266 Ark. 523, 587 S.W.2d 8 (1979); Robbins v. Guy, 244 Ark. 590, 426 S.W.2d 393 (1968).
Nothing in the majority opinion supports the conclusion that this court has done anything other than merely substitute its own discretion for the trial court’s.