dissenting. Amato v. General Motors Corp. (1981), 67 Ohio St. 2d 253, 21 O.O. 3d 158, 423 N.E. 2d 452, was improperly decided by this court and the majority’s continued reliance upon it breeds confusion and promotes uncertainty in an area of law which is in great need of clarification and stability. In my judgment, Amato should be overruled, and I stand ready to do so.
R.C. 2505.03(A) states, in relevant part, that “[e]very final order * * * may be reviewed on appeal * * *.”
R.C. 2505.025 defines what types of orders are final: (1) an order affecting a substantial right in an action which in effect determines the action and prevents a judgment; (2) an order affecting a substantial right made in a special proceeding or made upon summary application after judgment; or (3) an order vacating or setting aside a judgment or granting a new trial. See Chef Italiano Corp. v. Kent State Univ. (1989), 44 Ohio St. 3d 86, 87-88, 541 N.E. 2d 64, 67. The issue presented in the case at bar concerns only the second part of R.C. 2505.02 — an order affecting a substantial right made in a special proceeding or made upon summary application after judgment.
The court in Amato announced a “balancing test” to be utilized in determining whether an order is made in a “special proceeding.” The balancing test “* * * weighs the harm to the ‘prompt and orderly disposition of litigation,’ and the consequent waste of judicial resources, resulting from the allowance of an appeal, with the need for immediate review because appeal after final judgment is not practicable.” Id. at 258, 21 O.O. 3d at 161, 423 N.E. 2d at 456. Certainly, this court can devise a definition for “special proceeding” which will not depend upon which way the Amato scale of justice tips on any given day. The Amato balancing test is comprised of nothing *73more than meaningless verbiage to the practicing attorney who has received an order and must decide whether or not to file a notice of appeal.
According to Amato, a proceeding is defined as “special” (or not “special”) only when a majority of a reviewing court finds that the balance tips in favor of review, and when the reviewing court is a court of appeals even that decision can be changed by this court on appeal. If the balance tips in favor of review, any order affecting a substantial right which was rendered in a civil proceeding is a final appealable order which must be appealed within thirty days.6 What about members of the bar in this state who never timely file notices of appeal regarding an order made in a proceeding thinking all the while that the Amato balancing test would tip in one direction and then, sometime thereafter, a reviewing court rules that the proceeding was “special”? The answer is, of course, that appeal rights are forever lost and colorable claims for malpractice arise. Hence, there are two lessons to be learned from Amato. First, every order that affects a substantial right in any proceeding should immediately be appealed since what may be defined as an order made in a “special proceeding” may change day to day under Amato. In this vein, Amato makes the filing of a notice of appeal like attempting to shoot a moving target. The other lesson Amato teaches us is that the payment of malpractice insurance premiums for practicing attorneys is essential.
In my judgment, this court should strive to promote clarity and stability in the law. Today’s majority opinion simply runs afoul of these notions by relying on Amato.
The General Assembly has determined that orders affecting a substantial right made in a “special proceeding” are final orders which may be appealed. On occasion, this court has made certain proceedings “special proceedings” regardless of whether the given proceeding was “special” at all. Today, the majority takes what may be the ultimate step in this dangerous direction.
A “special” proceeding is a proceeding which is unusual or extraordinary. See, e.g., Black’s Law Dictionary (5 Ed. 1979) 1253. In State v. Thomas (1980), 61 Ohio St. 2d 254, 15 O.O. 3d 262, 400 N.E. 2d 897, paragraph one of the syllabus, this court held that denial of a motion to dismiss a criminal charge, based upon a claim of double jeopardy, is a special proceeding. This court has also granted a party the right to immediately appeal an adverse ruling on a discovery matter, as an order made in a special proceeding. See Humphrey v. Riverside Methodist Hospital (1986), 22 Ohio St. 3d 94, 22 OBR 129, 488 N.E. 2d 877. Now the majority of this court holds that an order, pursuant to Civ. R. 23, granting class action status is an order made in a special proceeding.
There is absolutely nothing “special” about proceedings under the Rules of Criminal or Civil Procedure. There is nothing unusual or extraordinary about proceedings that are a part of our everyday civil or criminal practice.7
As I have stated on a previous occasion, I believe that:
“A special proceeding is an action *74not recognized at common law or part of our standard civil practice. It is one that has been brought about by specific legislation which creates a special type of action. Examples would be forcible entry and detainer, declaratory judgment, appropriation or * * * arbitration.” Stewart v. Midwestern Indemn. Co. (1989), 45 Ohio St. 3d 124, 128, 543 N.E. 2d 1200, 1204 (Douglas, J., dissenting).
Therefore, a special proceeding is an action: (1) which has been brought about by specific legislation creating a special type of action; (2) and is either (a) not recognized at common law, or (b) not part of our standard civil (or criminal) practice. An order granting certification of a defendant (or plaintiff) class does not meet this definition.
Class actions are governed by Civ. R. 23. Civ. R. 23 was created not by specific legislation but, rather, was adopted in Ohio by legislative inaction. See Section 5(B), Article IV, Constitution. As such, a class action proceeding is not a special proceeding. Further, merely for purposes of discussion, the class action proceeding in question is part of our standard civil practice and a proceeding in the nature of granting certification of a defendant class did exist at common law in the form of equitable bills of peace.8 Accordingly, the proceeding in question not only fails the first prong of the special proceeding test outlined above (which is dispositive of the matter) but also fails both alternative parts of the second prong.
I agree with today’s majority that the denial of a class certification is ap*75pealable as a final order. In my view, the issue concerning the denial of class certification was not properly before this court given the facts of the case sub judice, but I pass judgment on the issue only to clarify the distinction between granting and denying class certification.
As indicated, there are three fypes of orders which are final. An order granting or denying class certification is not a final order of the second type (an order affecting a substantial right made in a special proceeding) because such an order is made in a proceeding which is not “special.” Nor is an order granting class certification a final order of the first type (an order affecting a substantial right in an action which in effect determines the action and prevents a judgment). An order allowing a lawsuit to be maintained as a class action does not determine the action or prevent a judgment. The order simply does neither but, rather, the order granting class status is a necessary step to a final determination of the class action lawsuit.
Conversely, an order denying class certification is a final order of the first type because the order affects a substantial right of the class and in effect determines the action and prevents a judgment for the class. See Roemisch v. Mutual of Omaha Ins. Co. (1974), 39 Ohio St. 2d 119, 122, 68 O.O. 2d 80, 81, 314 N.E. 2d 386, 388. Therefore, an order denying class certification is a final order of the first type, but not the second; whereas, an order granting class certification is not a final order of either the first or second type.
Finally, even if I were to accept the balancing test of Amato as a determinant of whether a given order is made in a special proceeding, I believe that the test as applied to orders granting class certification balances in favor of no immediate review. If an order granting class certification is immediately appealable, the class action lawsuit may never be finally litigated. A certification order can be altered, amended, modified or vacated and each change in the class or creation of a new subclass would result, if objected to, in numerous new appeals. Delays in the class action lawsuit could last indefinitely. Such delays and the consequent waste of judicial resources, if the class is decertified or the order is vacated, weigh heavily against permitting immediate appeals. On the other hand, review after final judgment is practicable, in that it would promote the prompt and orderly disposition of the litigation, and far fewer judicial resources would be used, with none being wasted.
For the foregoing reasons, I dissent.
Sweeney, J., concurs in the foregoing dissenting opinion.R.C. 2505.02 provides in relevant part:
“An order that affects a substantial right in an action which in effect determines the action and prevents a judgment, an order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order that vacates or sets aside a judgment or grants a new trial is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial.”
See App. R. 4(A).
For an additional case, not based on either the Civil or Criminal Rules, creating yet another exception to the final appealable order rule, see Tilberry v. Body (1986), 24 Ohio St. 3d 117, 24 OBR 308, 493 N.E. 2d 954.
At common law, a bill of peace could be sought to avoid a multiplicity of legal actions. The bill provided a mechanism in which similar claims asserted by a plaintiff against a multitude of defendants could be determined in one equity suit. See 1 Pomeroy Equity Jurisprudence (5 Ed. 1941), Section 245 et seq.; Chafee, Bills of Peace With Multiple Parties (1932), 45 Harv. L. Rev. 1297 (“The King of Brobdingnag gave it for his opinion that, ‘whoever could make two ears of corn, or two blades of grass to grow upon a spot of ground where only one grew before, would deserve better of mankind, and do more essential service to his country than the whole race of politicians put together.’ In matters of justice, however, the benefactor is he who makes one lawsuit grow where two grew before. A potent device for this purpose is the bill of peace in equity.”); and 27 American Jurisprudence 2d (1966) 574-575, Equity, Section 51.
The granting of the bill of peace would, in effect, result in the joinder of multiple defendants and the plaintiff’s claims against all defendants could be maintained in one consolidated lawsuit. The granting of a bill of peace was, therefore, much like the granting of certification of a defendant class. See Civ. R. 23. Indeed, it has been said that Fed. R. Civ. P. 23 is a product of the equitable bill of peace:
“* * * Defendant class actions have a long and rich history in English common law. The earliest class actions, or bills of peace in the nature of class actions, brought in English Chancery Courts of the seventeenth and eighteenth centuries were largely defendant class actions in which the plaintiff needed to join numerous parties defendant in order to receive an effective remedy. * * *
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“Defendant class actions have a long history in the United States. As early as 1853, the Supreme Court in Smith v. Swormstedt [(1853), 57 U.S. (16 How.) 288] upheld an action by a plaintiff class against a defendant class noting the well-established common law rule which permits such class suits. Authority for plaintiff and defendant classes was codified in Federal Equity Rule 38, recodified in Federal Rule of Civil Procedure 23, and carried forward to current Rule 23 in the 1966 amended version.” (Footnotes omitted.) Newberg, 1 Newberg on Class Actions (2 Ed. 1985) 373-375, Section 4.45.