dissenting. Because I disagree both with the majority’s interpretation of the service requirements of R.C. 2721.12 and its conclusion that service here was insufficient, I respectfully dissent.
The majority holds that the Ciccos failed to properly serve the Attorney General by not complying with R.C. 2721.12’s implicit service requirements. The majority’s interpretation of R.C. 2721.12, if dissected, imposes upon litigants three distinct procedural requirements: (1) all constitutional issues must be raised in a complaint, amended complaint, or other initial pleading; (2) service of the complaint or initial pleading is mandatory; and (3) service must be by certified mail.
The text of R.C. 2721.12 as applicable to this case, however, includes none of these requirements. While the General Assembly has since revised that section in Sub.H.B. No. 58, effective September 24, 1999, to require service of the complaint upon the Attorney General, we are charged with interpreting the statute prior to that revision. The language of former R.C. 2721.12 was limited in scope and required only that a-copy of the proceeding be served upon the Attorney General. 144 Ohio Laws, Part II, 2930. Consequently, I consider the majority’s imposition of additional procedural requirements based upon that section to be an improper departure from the terms of the statute.
I
The majority’s analysis of the service requirements under R.C. 2721.12 begins with its conclusion that the constitutionality of a statute must be raised in a complaint, amended complaint, or other initial pleading. Although this proposition propels the remainder of its analysis, the majority cites no case law or other authority in support of the statement, assuming rather that the conclusion follows from the declaratory judgment statute itself.
The statute, however, cannot fairly be read to require constitutional issues to be raised in the initial pleading — its scope extends no further than the requirement that service be made upon the Attorney General in declaratory judgment actions involving constitutionality. Moreover, case law from this and other jurisdictions supports the opposite conclusion. Many courts, both federal and' state, allow constitutionality to be raised at other points in the proceeding based upon the principle that cases should be determined upon their merits. Typically, courts reach this outcome using one of two analyses.
A significant number of jurisdictions hold that a constitutional issue need only be raised at the earliest opportunity, provided that the other side is not prejudiced by the delay. The purpose of the rule is to “prevent surprise to the *106opposing party, and to permit the trial court an opportunity to fairly identify and rule on the issue.” Land Clearance for Redevelopment Auth. v. Kansas Univ. Endowment Assn. (Mo.1991), 805 S.W.2d 173, 175.
Thus, the court in Mission Hous. Dev. Co. v. City & Cty. of San Francisco (1997), 59 Cal.App.4th 55, 78, 69 Cal.Rptr.2d 185, 200, concluded that the defendant had timely raised a constitutionality challenge by raising it for the first time in his opening trial brief. Likewise, in Winston v. Reorganized School Dist. R-2, Lawrence Cty., Miller (Mo.1982), 636 S.W.2d 324, 327, the plaintiff challenged the statute’s constitutionality at the “earliest opportunity” by including it in a reply to the defendant’s answer and motion for summary judgment. See, also, Kenmike Theatre, Inc. v. Moving Picture Operators, Local 304, Am. Fedn. of Labor (1952), 139 Conn. 95, 90 A.2d 881; State v. One 1985 Mercedes 190D Auto. (1995), 247 Neb. 335, 344, 526 N.W.2d 657, 664; Mercer v. Phillips Natural Gas Co. (Tex.App.1988), 746 S.W.2d 933, 936; Billings Deaconess Hosp., Inc. v. Angel (1986), 219 Mont. 490, 495, 712 P.2d 1323, 1327; see, also, Mark v. Mellott Mfg. Co., Inc. (Sept. 13, 1989), Ross App. No. 1494, unreported, 1989 WL 106933 (holding that the statute’s constitutionality would have been sufficiently raised in the trial court had it been included in defendant’s motion for summary judgment).
Other courts hold that where a claim (constitutional or otherwise) is raised other than at the inception of the proceeding, amendment of the pleadings is not necessary if that claim can be deemed to have been “tried by consent” under Civ. R. 15(B) or Fed.R.Civ.P. 15(b). Again the underlying concern is prejudice to the opposition, and the appropriate inquiry is whether the opposing party and the court have received adequate notice that a new issue is being raised. See, e.g., Swinney v. Gen. Motors Corp. (C.A.6, 1995), 46 F.3d 512, 522; Austintown Local School Dist. Bd. of Edn. v. Mahoning Cty. Bd. of Mental Retardation & Developmental Disabilities (1993), 66 Ohio St.3d 355, 365, 613 N.E.2d 167, 175; In re Zweibon (C.A.D.C.1977), 565 F.2d 742, 748, 184 U.S.App.D.C. 167, 173, fn. 20, citing Hayes v. Philadelphia Transp. Corp. (C.A.3, 1963), 312 F.2d 522, and Wright & Miller, Federal Practice and Procedure (1973) 477, Section 2722, fn. 22 (“It is now settled that the process of amendment may be initiated by presentation of an issue for the first time in a motion for summary judgment.”).
The majority’s conclusion that constitutional issues may be raised only at the inception of an action departs from this established law and does so without any statutory support. Its interpretation, therefore, modifies well-settled procedural practice and imposes limitations not considered or intended by the statutory language of R.C. 2721.12. Because I see no reason to stray from the view accepted by the majority of jurisdictions, I would conclude that, where appropriate, the constitutionality of a statute may be raised at a later juncture than the inception of the proceeding.
*107II
Given that I disagree with the majority’s basic proposition, I also disagree with the next step in its analysis. The majority concludes that since the issues of constitutionality must be raised in the complaint or initial pleading, the Attorney General must in all instances be served with a copy of that document.
Because constitutionality ought to be permitted to be raised at other points in the proceeding, however, I believe it a more appropriate reading of former R.C. 2721.12 to require that the Attorney General be served with a copy of the pleading or motion actually raising the constitutional issue. Not only is this the more reasonable interpretation of that statute, but it is also precisely the procedure followed in various other jurisdictions across the country.
The Louisiana Supreme Court, for instance, which has consistently held that constitutionality, may be raised either in the complaint, the answer, the motion for summary judgment, or a response thereto, concludes that it is the “pleading which contests the constitutionality of a statute” that must be served. Vallo v. Gayle Oil Co., Inc. (La.1994), 646 So.2d 859, 864. Similarly, in Tyson Foods, Inc. v. Thompson (Ala.Civ.App.1998), 719 So.2d 847, although service upon the Attorney General was held insufficient, the court so concluded because the Attorney General was not served with the objection to the motion to dismiss the appeal, the document that raised the constitutionality of the statute at issue. See, also, Mobile v. Salter (1971), 287 Ala. 660, 664, 255 So.2d 5, 7.
Because the text of former R.C. 2721.12 does not mandate that the Attorney General be served with the complaint, I see no justification for interpreting it in that manner, since the complaint may not be the vehicle that raises the constitutional issue. As this court has explained, the “very apparent intent of R.C. 2721.12 is to ensure that the Attorney General is informed of attacks on the constitutionality of the laws of this state.” Ohioans for Fair Representation, Inc. v. Taft (1993), 67 Ohio St.3d 180, 184, 616 N.E.2d 905, 908. The document that' contains the constitutional issues is the document that would accomplish this purpose, and therefore it is a copy of that document that should be served.
III
The first two issues having been so resolved, the next issue is the manner in which the copy of the proceeding must be served upon the Attorney General. Again working from its prior conclusions, the majority reasons that since it is the complaint or initial pleading that must be served, service should be completed in the manner typically used for complaints.
Since I would conclude that documents other than the complaint or initial pleading might be served upon the Attorney General, I believe that the majority’s *108requirement of certified mail is not in all instances appropriate. Because the statute is silent on the type of service that will suffice, it follows that the typical procedures contained in the Civil Rules should apply. Thus, where the document to be served is the complaint, the Civil Rules require service by certified mail; documents succeeding the complaint may be served by ordinary mail. See Civ.R. 4.1; Civ.R. 5.
IV
To summarize, then, I disagree with the majority’s decision to impose strict procedural mandates upon the service requirement of R.C. 2721.12 because those procedures are not contained in the statute. This court recently disposed of an analogous procedural interpretation of R.C. 2721.12 under the same reasoning. In Plumbers & Steamfitters Local Union 83 v. Union Local School Dist. Bd. of Edn. (1999), 86 Ohio St.3d 318, 322, 715 N.E.2d 127, 130, we rejected the argument that all interested persons must be made parties in the initial pleading. As Justice Resnick explained:
“To do this, we would have to write into R.C. 2721.12 a clause that does not appear * * * . R.C. 2721.12 provides the substantive requirement that all interested persons be made parties; it does not purport to govern the procedural method by which this is accomplished, and it certainly does not limit parties to their initial pleadings.”
This reasoning is fully applicable to the interpretation of R.C. 2721.12 at issue in this case. It is simply not within our province to rewrite R.C. 2721.12 to contain specific procedural requirements not included by the General Assembly, particularly when that interpretation departs from well-settled law.
I would hold, therefore, that R.C. 2721.12 contemplates service upon the Attorney General of the document that raises the challenge to the constitutionality of the statute and that this document should be served in accordance with the applicable Civil Rules.
V
Applying the above to the instant case, the service attempted on the Attorney General was sufficient to invoke the trial court’s jurisdiction over the issues of constitutionality. The Ciccos first raised their constitutional challenge in their motion for summary judgment, which was conceivably the earliest opportunity for these issues to be addressed. Their complaint essentially sought compensation under both their own and the defendant’s insurance policies. The Ciccos’ insurance carrier responded by denying that any coverage was owed on either of the claims for uninsured motorist coverage. At that point, in the motion for *109summary judgment, the Ciccos requested a determination of the constitutionality of the statutes that allow its carrier to deny such coverage. The Ciccos raised these issues at precisely the time they arose.
Likewise, under Civ.R. 15(B) analysis, the Ciccos provided both the opposing side and the trial court with sufficient notice of this issue. Furthermore, both parties received adequate opportunity to address the issue, and, based upon their arguments, the trial court determined the issue. Thus, the issue was tried by consent, and no amendment was necessary in order to place it properly before the trial court.
The issue having been appropriately raised in the motion for summary judgment, it follows that the Ciccos’ service duty under R.C. 2721.12 was to provide the Attorney General with a copy of the motion for summary judgment. A review of that document’s certificate of service reveals that service was made on the Attorney General at the proper address by means of ordinary mail. Since the document forwarded was not a complaint but instead a motion for summary judgment, service by ordinary mail was sufficient. Civ.R. 5.
Furthermore, the Attorney General’s statement that the motion was never received does not alter this analysis, given the documentation of service provided by the Ciccos and the provision of Civ.R. 5 that service by ordinary mail is complete upon mailing. See, also, Madachik v. Ohio Bell Tel. Co. (July 27, 1989), Cuyahoga App. No. 57202, unreported, 1989 WL 85093. To hold parties to a higher standard under R.C. 2721.12 when no expression of that intention is contained anywhere within the statute would be groundless.
For the foregoing reasons, I would hold that the Ciccos sufficiently served the Attorney General with a copy of the proceeding raising the constitutionality of the statutes at issue and therefore the trial court had jurisdiction to address those issues.
Douglas and Pfeifer, JJ., concur in the foregoing dissenting opinion.