I respectfully dissent. The majority holds that the circuit court’s interlocutory order utilizing the “opt-iri” class certification procedure is immediately appealable under S.C.Code Ann. § 14-3-330(2) (1976) because it is an order affecting the mode of trial. I disagree: the “mode of trial” exception to the general rule that only final orders are appealable is confined to orders which abridge a party’s constitutional right to trial by jury. E.g., Flagstar Corp. v. Royal Surplus Lines, 341 S.C. 68, 533 S.E.2d 331 (2000); Pelfrey v. Bank of Greer, 270 S.C. 691, 244 S.E.2d 315 (1978). I would therefore dismiss both appeals. Knowles v. Standard Savings and Loan Ass’n., 274 S.C. 58, 261 S.E.2d 49 (1979) (dismissing an interlocutory appeal from a class certification order holding such an order “does not involve substantial or essential legal rights which require attention prior to final judgment”).
Although the issue is not properly before us, I note my disagreement with the majority’s decision on the merits as well as with its procedural ruling. Without question, the circuit court has discretion to create an “opt-in” class under Rule 23(d), SCRCP, and while we have never directly addressed the propriety of the “opt-in” class, we have never disapproved of the procedure. See Tilley v. Pacesetter Corp., 355 S.C. 361, 585 S.E.2d 292 (2003) (approving timing of notice to persons eligible to join the class). Moreover, I am at a loss to understand the majority’s holding that an “opt-in” class somehow runs afoul of Rule 20(a), SCRCP, the permissive joinder provision. The first prerequisite for class certification is a finding that the class is so numerous that joinder is not practicable. Assuming that criterion is satisfied, whether the class proceeds as “opt-in” or “opt-out,” each potential class member has the right to determine whether to participate in the law suit, and thus the same “ersatz” joinder problem exists under either scenario.
None of the interlocutory orders sought to be appealed are immediately appealable under § 14-3-330. I would dismiss the cross-appeals.