CHIEF JUSTICE BENDER
delivered the Opinion of the Court.
1 Bristol Bay Productions, LLC brought claims against author Clive Cussler in California for fraud based on allegations that he had misrepresented his readership figures. Bristol Bay alleged that Cussler misrepresented his readership figures by claiming that he had sold over 100 million books when, in fact, the figure was closer to 40 million. According to Bristol Bay, it was fraudulently induced by Cussler's misrepresentations and reasonably relied on them by purchasing the film rights to Cussler's books and producing an unsuccessful movie based on one of them, Sahara, with resulting damages of more than $50 million. In a special verdict, a California jury found that Cussler misrepresented his readership figures and that Bristol Bay reasonably relied on those misrepresentations but that Bristol Bay's reliance on those misrepresentations did not cause its damages.
T2 Meanwhile, Bristol Bay sued Cussler's literary agent and publishers for fraud in Colorado based on the same allegations directed at Cussler in California and based on misrepresentations that Bristol Bay concedes before this court to have been the same: that they had misrepresented Cussler's readership figures by claiming that Cussler had sold over 100 million books. As in California, Bristol Bay alleged that it was fraudulently induced by the misrepresentations and reasonably relied on them by purchasing the film rights to Cussler's books and producing Sahara. Again, Bristol Bay alleged damages of more than $50 million.
13 Following BristolBay's unsuccessful appeal of the California action, the trial court dismissed Bristol Bay's Colorado action under CGR.C.P. 12(b)(5) on issue preclusion grounds for failure to state a claim. The trial court found "no meaningful difference" between the alleged misrepresentations and concluded that Bristol Bay was precluded from bringing the Colorado action because the California jury had determined that Bristol Bay's reliance on the misrepresentations did not cause its damages, irrespective of who made them. The court of appeals affirmed. Bristol Bay Prods., LLC v. Lam-pack, 313 P.3d 674, 2011 WL 5865902 (Colo.App.2011).
T4 We hold that Bristol Bay's Colorado action is barred on issue preclusion grounds because the identity of the defendants in this case is not relevant to the causation element Bristol Bay must prove to prevail on its fraud and fraud-based claims. Because applying issue preclusion is appropriate, we must determine whether the trial court erred by dismissing Bristol Bay's Colorado action under C.R.C.P. 12(b)(5). We hold that the trial court erred by dismissing Bristol Bay's Colorado action under C.R.C.P. 12(b)(5) without converting the defendants' motion to dis[1157]*1157miss into a motion for summary judgment under C.R.C.P. 56. '
15 Hence, we affirm that portion of the court of appeals' decision applying issue preclusion to bar Bristol Bay's Colorado action, but we reverse that portion of its decision upholding dismissal under C.R.C.P. 12(b)(5) for failure to state a claim. Because C.R.C.P. 56 was the appropriate procedure to resolve this case, Bristol Bay is not liable for attorney fees under Colorado's attorney fee-shifting statute.
I. Facts and Procedural History
T6 Sahara, a movie starring Matthew McConaughey as master adventurer Dirk Pitt, a character from author Clive Cussler's widely read adventure novels, was released in 2005 with the expectation of becoming a successful movie and eventual film franchise similar to the Indiana Jones series. Instead, the movie was plagued by pre-production problems, opened to mostly tepid reviews, and grossed about half of its multimillion-dollar budget. Plans to produce additional Dirk Pitt movies were serapped. The fallout spawned litigation in California and then Colorado, with Bristol Bay Productions, LLC, which produced Sahara, alleging that it was fraudulently induced into purchasing the film rights to Cussler's novels and then producing Sahara based on inflated representations of Cussler's readership figures. We begin with the California action.
The California Action
T7 Bristol Bay Productions, LLC ("Bristol Bay") 1 contracted with Clive Cussler to produce a film of Cussler's novel Sahara with an option to produce additional movies based on other Dirk Pitt books. After pre-production began, a dispute arose about the Sahara screenplay. Cussler, who retained approval rights over the seript, grew increasingly dissatisfied with its progress and began writing his own version. After Bristol Bay refused to use it, Cussler stopped approving screenplay drafts.
18 Before Swhara hit theaters, Cussler sued Bristol Bay in California for breach of contract and other claims because it had failed to secure his approval of the final screenplay. During discovery, Bristol Bay learned that Cussler's readership figures were smaller than it had been led to believe they were: only 40 million, and not 100 million; of Cussler's books had been sold. Bristol Bay then brought claims against Cussler for fraud, alleging that Cussler or Cussler's literary agent Peter Lampack misrepresented Cussler's readership figures and that those misrepresentations induced Bristol Bay to agree to enter the film-rights contract and produce Sahara at a loss of more than $50 million. «
T9 The California jury returned a special verdict rejecting Bristol Bay's fraud claims. Despite the jury's findings that Cussler misrepresented his readership figures and that Bristol Bay reasonably relied on those misrepresentations, it also found that Bristol Bay's reliance on Cussler's misrepresentations did not cause its damages or losses. Because the jury's special verdict did not provide a reason why Bristol Bay's reasonable reliance did not cause its damages, we are left to speculate that Sahara was unsue-cessful for reasons other than its reliance on Cussler's misrepresentations of his readership figures. '
' 10 While the California trial was ongoing but months before the California jury had returned its special verdict, Bristol Bay sued Cussler's agent Lampack and Cussler's publishers, Simon & Schuster, Inc. and Penguin Group (USA), Inc. (collectively, "Publish ers"), in Colorado. We turn to the Colorado action now before us.
The Colorado Action
{11 In Colorado, Bristol Bay sued Lam-pack and the Publishers based on the same allegations directed at Cussler in California and based on the same misrepresentations he made: that they had misrepresented Cus-sler's readership figures by claiming that Cussler had sold over 100 million books when, in fact, the accurate figure was closer [1158]*1158to 40 million. That the misrepresentations alleged in the Colorado action are the same as those alleged in California was conceded by Bristol Bay at oral argument before this court. Bristol Bay alleged that it was fraudulently induced by those misrepresentations and relied on them to determine the breadth of Cussler's fan base, the appropriate purchase price for the film rights, and the money to spend developing, producing, and marketing Suhara. Again, Bristol Bay alleged damages of more than $50 million.
(12 After the California jury returned its special verdict, Lampack and the Publishers moved to stay the Colorado action on issue preclusion grounds. They alleged that Bristol Bay was attempting to recover identical damages based on identical issues already litigated in the California action-that misrepresentations about Cussler's readership figures induced it to buy the film rights and to produce Sohara. Bristol Bay opposed the motion, and the parties submitted voluminous documents from the California action to support their respective positions, including pleadings, jury instructions, the jury's special verdict, hundreds of pages of trial tran-seripts, and affidavits from counsel.
13 Considering this material to address whether the issues were identical, and despite the fact that Bristol Bay's claims were based on the misrepresentations allegedly made by the Publishers rather than by Cus-sler, the trial court found "no meaningful difference between the content of the misrepresentations of fact alleged here and those presented to the jury in the prior litigation." Given this finding, the trial court reasoned that the identity of the defendant may be relevant to whether Bristol Bay's reliance was reasonable but not to whether Bristol Bay's reliance caused its damages, "a contention which [Bristol Bay] actually litigated and on which it necessarily and demonstrably failed to prevail in the California Action." In the trial court's view, Bristol Bay "simply failed to convince the California jury that its reasonable reliance on these false representations caused it any injury." Hence, the trial court granted the motion to stay, concluding that issue preclusion would bar Bristol Bay's Colorado action onee the California action was affirmed on appeal. See Rantz v. Kaufman, 109 P.3d 182, 141 (Colo.2005) (holding that a judgment that is still pending on appeal is not final for issue preclusion purposes).
14 After the California court of appeals affirmed judgment on Bristol Bay's fraud claims,2 Lampack and the Publishers moved to dismiss the Colorado action. The trial court, acting through a different judge, granted the motion under C.R.C.P. 12(b)(5) for failure to state a claim. Lampack and the Publishers then sought attorney fees under Colorado's attorney fee-shifting statute, which mandates an award of attorney fees to the prevailing party when a tort action is dismissed under C.R.C.P. 12(b). See § 13-17-201, C.R.S (2013).
15 Bristol Bay appealed to the court of appeals, which affirmed the trial court's order. The court of appeals reasoned that the California jury's factual finding that Bristol Bay's reasonable reliance on Cussler's misrepresentations did not cause its damages barred Bristol Bay "from arguing that reliance on anyone's misrepresentation about the number of Cussler's books sold caused its losses." The court of appeals also affirmed the propriety of dismissal under C.R.C.P. 12(b)(5) for failure to state a claim, thereby subjecting Bristol Bay to liability for attorney fees.
1 16 Bristol Bay then petitioned this court for certiorari review of the court of appeals' decision.3 We begin with a discussion of issue preclusion.
[1159]*1159II. Issue Preclusion
[1,2] 117 Issue preclusion, also known as collateral estoppel, presents a question of law that we review de novo. Stanton v. Schultz, 222 P.B8d 303, 307 (Colo.2010). It bars relitigation of an issue that is identical to an issue that has been actually litigated and necessarily adjudicated in a prior proceeding. Id. Although easy to recite in principle, one of the most difficult issue preclusion questions "is to delineate the issue on which litigation is, or is not, foreclosed by the prior judgment." Restatement (Second) of Judgments, § 27 emt. c (1982); see also 18 Charles Alan Wright et al., Federal Practice and Procedure § 4417, at 414 (2d ed.2002). We must confront this question to resolve this case.
« 18 The Publishers argue that Bristol Bay is precluded from bringing the Colorado action.4 They contend that the Colorado action requires Bristol Bay to relitigate an issue that was decided adversely to it in California-that Bristol Bay's reliance on misrepresentations of Cussler's readership figures caused its damages. Bristol Bay argues that the issues are not identical because causation is always an actor-specific question for the jury and the Colorado defendants are different from the California defendant. In Bristol Bay's view, the presence of different defendants requires reversal of both lower courts' rulings.
¶ 19 We begin our discussion by examining our precedent. Alth ugh we have not yet addressed an identity-of-issue question that has presented much difficulty, we find persuasive an approach that focuses on the elements of the claims at issue. Turning to the claims in this case, we examine the elements of Bristol Bay's fraud claims in both California and Colorado to determine whether the identity of the defendant is relevant to the causation element of the fraud and fraud-based claims in this case. After examining the causation element in detail, assuming reasonable reliance by Bristol Bay and recognizing that Bristol Bay alleges identical reliance on substantially identical misrepresentations to those alleged in California, we conclude that the identity of the defendants is not relevant in this case. Applying this conclusion, our review of the California jury's special verdict requires us to hold that Bristol Bay's Colorado action is barred on issue preclusion grounds.
Identity of Issues
T20 Our precedent reflects that we have not yet confronted an ¶ dentity-of-issue question that has presented much difficulty in application. In most cases, the issue raised in a later proceeding is found to be the same, or not to be the same, as the issue decided in the first proceeding without in-depth analysis. See, eg., In re Tonko, 154 P.3d 397, 405-06 (Colo.2007) (holding that the water rights issue raised by the applicants was not identical to the issue raised in an earlier condemnation proceeding); see also 18 Wright et al., Federal Practice and Procedure § 4417, at 414.
¶ 21 In Stanton v. Schultz, we considered whether a plaintiff was barred from suing his lawyer for malpractice because he had already brought a postconviction motion for a new trial based on new evidence. Stanton, 222 P.3d at 805. To determine whether the plaintiff was precluded from bringing his legal malpractice claim, we compared the elements the plaintiff needed to prove to sue-ceed on his postconviction motion to the elements the plaintiff would need to prove to succeed on his legal malpractice claim. Id. at 307. To prevail on his postconviction motion, the plaintiff had to prove that the result of his trial would have been different if the new evidence had been presented. Id. at 307. Likewise, to prevail on his legal malpractice claim, the plaintiff would have had to prove that the result of his trial would have been different if his attorney had presented that new evidence. Id. Comparing these elements, we concluded that the plaintiff's legal malpractice claim and the plaintiff's postconviction motion required him to prove an identical causation element. Id. at 807-08.
[1160]*1160T122Stanton addressed the question of whether the elements needed to prove the plaintiff's postconviction motion were identical to those needed to prove the plaintiff's legal malpractice claim. See id.; see also 18 James W. Moore et al., Moore's Federal Practice § 132.02[21[j] (Matthew Bender 3d ed. 2013). In other words, Stanton concerned whether two different claims in two different proceedings required the plaintiff to prove an identical legal issue.
€ 23 This case raises a related but different question. Bristol Bay does not argue that the elements needed to prove its claims in the Colorado action are different from those it needed to prove in the California action, nor does it argue that the Publishers' alleged misrepresentations are different from Cus-sler's. Rather, Bristol Bay contends that the issues are not identical because of one factual difference-the identity of the Colorado defendants.
24 The basic tenet that issue preclusion applies only to identical issues means that a difference in facts may change the issue and render issue preclusion inapplicable. 18 Moore's Federal Practice § 182.02[2][e]. "[Clhanges in facts essential to a judgment will render [issue preclusion] inapplicable in a subsequent action raising the same issues." Montana v. United States, 440 U.S. 147, 159, 99 S.Ct. 970, 59 LEd.2d 210 (1979) A change in facts may render issue preclusion inapplicable in one context but not in another-the question is whether the change in facts matters in light of the elements needed to prove a party's claims. See 18 Moore's Federal Practice § 182.02[2][e] (noting that whether a factual distinction is relevant nee-essarily depends on the governing law); see also Reynolds v. Cotten, 2012 CO 27, 111, 274 P.3d 540 (stating that whether an issue is identical to another "will invariably involve matters of law and logic, rather than credibility and fact-finding").
125 Thus, the question of whether the issues are identical turns on whether the identity of the Colorado defendants is relevant in light of the elements Bristol Bay must prove to prevail on its fraud and fraud-based claims in this case. See 18 Moore's Federal Practice § 182.02(2][el. To address this question, we examine the elements of fraud in both California and Colorado in greater detail.
The Elements of Fraud
26 There is no dispute that the elements of fraud in California and Colorado are identical in all substantive respects.5 We have typically stated that a plaintiff seeking to prevail on a fraud claim must establish five elements: (1) that the defendant made a false representation of a material fact; (2) that the one making the representation knew it was false; (8) that the person to whom the representation was made was ignorant of the falsity; (4) that the representation was made with the intention that it be acted upon; and (5) that the reliance resulted in damage to the plaintiff. Vinton v. Virzi 2012 CO 10, 15, 269 P.3d 1242. For ease of understanding, Colorado's Model Jury Instructions unpack the fifth element into its three discrete sub-parts, requiring the plaintiff to prove separately actual reliance, the reasonableness of that reliance, and that the plaintiff's reliance caused its damages. CJI-Civ. 19:1 (2013) (listing the seven elements of a fraud claim).
127 Tracking these elements, we may assume that Bristol Bay could persuade a Colorado jury that the Publishers made a false representation of a material fact, that the Publishers knew the misrepresentation was false, that Bristol Bay was unaware that the misrepresentation was false, that the Publishers intended Bristol Bay to act upon the misrepresentation, that Bristol Bay did act upon the misrepresentation by relying on it in some fashion, and that its reliance was reasonable. By their terms, several of these elements are defendant-specific, such that [1161]*1161the identity of the defendant may matter for issue preclusion purposes depending on the facts of the case. For example, whether Bristol Bay's reliance was reasonable may depend, at least in part, on the identity of the defendant. Common sense suggests that Bristol Bay's reliance would tend to be perceived as more reasonable depending on whether the misrepresentations originated from a trusted source. Still, assuming the reasonableness of its reliance, Bristol Bay must establish causation: that its reliance caused damages.
. (28 Turning to the causation element, the Publishers contend that the identity of the defendant never matters when determining the cause of damages for fraud because the causation question turns on whether the plaintiff's reliance caused its damages, not on whether a defendant's misrepresentations caused them. That is, because the causation element is framed in terms of a plaintiffs reliance-assuming the plaintiff relied and that the reliance was reasonable-the causation inquiry is divoreed from the misrepresentations themselves and their alleged source, Thus, in the Publishers' view, the identity of the defendant is irrelevant to the causation element. There is some allure to the logic of this argument, and our precedent and Colorado's Model Jury Instructions appear to support it. See Morrison v. Goodspeed, 100 Colo. 4740, 478, 68 P.2d 458, 462 (1937) (noting that a plaintiff must prove "[aletion on the representation or concealment resulting in damage" to prevail on a fraud claim); CJI-Civ. 19:1 (2018) (requiring findings that the plaintiffs "reliance caused [injuries, damages, or losses] to the plaintiff"); see also Restatement (Second) of Torts §§ 546, 548A emt.a (1977) (stating that a plaintiff's justifiable reliance must be "a substantial factor in determining the course of conduct that results in his loss" and causation is "a matter of the recipient's reliance in fact upon the misrepresentation in taking some action or in refraining from it"); 2 Fowler V. Harper et al., Harper, James and Gray on Torts § 7.13, at 548 (Bd ed. 2006) {noting that whether a "defendant's misconduct has in fact caused plaintiff any damage . is frequently presented as a problem of 'reliance' on the part of the plaintiff on the misrepresentation").
¶ 29 Given the facts of this case, however, we need not adopt: the Publishers' all-or-nothing position to resolve the issue preclusion question presented here. In both the California action and the Colorado action, Bristol Bay brought fraud and fraud-based claims based on the same allegations: that inflated representations of Cussler's readership figures induced it to agree to enter a film-rights contract and to produce Sahara. Bristol Bay's allegations are founded on substantially identical misrepresentations that the Publishers, like Cussler, misrepresented Cussler's readership figures by claiming he had sold over 100 million books when, in fact, the accurate figure was closer to 40 million. And Bristol Bay has alleged identical reliance and identical damages in both actions.
¶ 30 That Bristol Bay's allegations involve the same misrepresentations was conceded at oral argument.6 Bristol Bay also made clear that its issue preclusion argument was not based on any perceived difference in the substance of the misrepresentations themselves but was instead based solely on the fact that its allegations were directed at different defendants: "(Bristol Bay is] not arguing that the different statement is the reason why we get to bring our claims in this case. We are arguing that it is a different set of defendants who stand in a different position with respect to a company like Bristol Bay." According to Bristol Bay, its allegations in Colorado could involve the "same misrepresentations" based on "evidence [that] might be exactly the same" as that presented in the California action, but the presence of different defendants nevertheless renders application of issue preclusion inappropriate.
131 In California and Colorado, Bristol Bay has claimed that it relied on the misrepresentations by agreeing to enter into a film-[1162]*1162rights contract and producing Sahara, and, in both actions, Bristol Bay has alleged resulting damages of more than $50 million. Thus, the causation inquiry is identical in this case.
€ 32 To counter this logic, Bristol Bay argues that causation is always an actor-specific question for the jury, relying on the case of Metropolitan Gas Repair Service, Inc. v. Kulik, 621 P.2d 318 (Colo.1980). Kulik involved a plaintiff who sued three companies for negligence after a boiler exploded because of a plugged release valve. Id. at 315. The plaintiff alleged that the companies should have noticed and fixed the faulty valve while doing other repair work. Id. at 315-16. At trial, one company, Metropolitan, moved for a directed verdict, which the trial court granted. Id. at 316, The plaintiff's claims against the two other companies were submitted to the jury, and the jury returned verdicts in the companies' favor. Id. On appeal by the plaintiff, the court of appeals reversed the directed verdict, and Metropolitan sought certiorari review. Id. at 316-17. After affirming the court of appeals' holding that the trial court erred by directing a verdict in Metropolitan's favor, we addressed Metropolitan's argument that any error was harmless because the plaintiff had relied on the same theory of liability against the two remaining companies, which the jury had found not liable. Id. at 318, 319. We held that issue preclusion did not bar the plaintiff from relitigating his negligence claim against Metropolitan because it was "dissimilar in fact and law" to the plaintiffs negligence claims against the other two companies. Id. at 319.
4 38Kulik is consistent with our analysis. In Kulik, the plaintiff's claim against Metropolitan was dissimilar in fact because Metropolitan's services were performed on different days and involved distinct projects, and the plaintiff's claim was dissimilar in law because Metropolitan's breach of duty on the day it provided services may have caused the injury irrespective of the other companies' conduct that the jury found to be not negligent. In contrast, here, Bristol Bay brought identical allegations based on substantially identical misrepresentations, and it alleged identical reliance and identical resulting damages. Thus, Bristol Bay's claims were not "dissimilar in fact and law." See id.
34 Hence, we conclude that the identity of the defendants in this case is not relevant to the causation element Bristol Bay must prove to prevail on its fraud and fraud-based claims.7
Application
[ 35 We begin by emphasizing that Bristol Bay's Colorado action is based on identical allegations concerning substantially identical misrepresentations to those alleged in California and with identical resulting damages. And we may assume that Bristol Bay could persuade a Colorado jury that it relied on those substantially identical misrepresentations and that its reliance was reasonable. However, Bristol Bay must still prove causation: that its reliance caused the damages.
[86 Turning to the California jury's special verdict tracking the elements of fraud, the jury found that Bristol Bay reasonably relied on Cussler's misrepresentations but that its reliance did not cause the alleged damages:
Question No. 39: Did [Bristol Bay] reasonably rely on the representation?
Answer: Yes.
Question No. 40: Was [Bristol Bay's] reliance on Cussler's representation a sub[1163]*1163stantial factor in causing harm to [Bristol Bay]?
Answer: No.
137 Despite the California jury's finding that Bristol Bay reasonably relied on Cus-sler's materially false representations, the jury nevertheless found that Bristol Bay's reliance on them did not cause its damages. In other words, the California jury found that Bristol Bay's damages were caused by something other than its reliance on misrepresentations about Cussler's readership figures, and we are left to speculate that Sahara was unsuccessful for other reasons. See 2 Harper et al., Harper, James and Gray on Torts § 7.183, at 549 (noting the possibility that a plaintiff's damages may result "from causes other than his reliance"). Assuming Bristol Bay could persuade a Colorado jury that it reasonably relied on substantially identical misrepresentations, Bristol Bay must still prove its reasonable reliance on those misrepresentations caused it damages, which the California jury determined adversely.
38 We hold that Bristol Bay's Colorado action is barred on issue preclusion grounds because the identity of the defendants in this case is not relevant to the causation element Bristol Bay must prove to prevail on its fraud and fraud-based claims. Hence, we affirm that portion of the court of appeals' decision applying issue preclusion to bar Bristol Bay's Colorado action.
III. Dismissal Under C.R.C.P. 12(b)(5)
139 Having concluded that issue preclusion bars Bristol Bay's Colorado action, we next address the appropriate procedure to resolve the case. Bristol Bay argues that the court of appeals erred by affirming the trial court's order dismissing its complaint under C.R.C.P. 12(b)(5). The court of appeals relied on Colorado caselaw and the perceived modern trend in the federal courts to fashion a rule permitting dismissal of an affirmative defense under C.R.C.P. 12(b)(5) when the complaint reveals that a claim is barred or where dismissal results in no prejudice to the plaintiff. The court of appeals found that Bristol Bay's complaint did not reveal that its claims were barred but concluded that dismissal under C.R.C.P. 12(b)(5) resulted in no prejudice to Bristol Bay.
1 40 In Bristol Bay's view, summary judgment is the appropriate procedure to dismiss its complaint because issue preclusion, as an affirmative defense, is not subject to dismissal for failure to state a claim. For support, Bristol Bay relies on our case of Ruth v. Department of Highways, 153 Colo. 226, 385 P.2d 410 (1963), for the proposition that the affirmative defense of issue preclusion cannot be a basis for dismissal under C.R.C.P. 12(b)(5). Lampack and the Publishers counter that dismissal under C.R.C.P. 12b)(5) is proper because the availability of issue preclusion was apparent from Bristol Bay's complaint and the record materials of the California action. They rely on federal authority that permits dismissal when the allegations in the complaint establish the existence of an affirmative defense and argue that Ruth is consistent with this modern trend. Emphasizing the importance of the parties' arguments is the operation of Colorado's attorney fee-shifting statute, section 13-17-201, which mandates an award of attorney fees to the prevailing party when a tort action is dismissed under C.R.C.P. 12(b).
¶ 41 An affirmative defense, such as issue preclusion, is typically raised in an answer, not in a motion to dismiss. C.R.C.P. 8(c), see also Markoff v. Barenberg, 149 Colo. 311, 313, 368 P.2d 964, 965 (1962) (affirmative defenses under C.R.C.P. 8 "cannot be raised by motion but only by answer"). This is so because a plaintiff has no obligation to anticipate an affirmative defense in the complaint and include allegations intended to negate it. Citizens State Bank v. Nat'l Sur. Corp., 199 Colo. 497, 500, 612 P.2d 70, 72 (1980); 4 Sheila K. Hyatt & Stephen A. Hess, Colorado Civil Rules Amnmotated 145 (2005). If the rule were otherwise, then it would: run afoul of the pleading standard embodied by C.R.C.P. 8, which requires that a plaintiff plead only a "short and plain statement of the claim showing that the pleader is entitled to relief" CRCP. 8(2)@). It would also place on the plaintiff the burden of pleading facts intended to negate an anticipated affirmative defense as an essential element of the plaintiff's claim. In keeping with [1164]*1164this principle, several of our cases have stated that an affirmative defense cannot be asserted in a C.R.C.P. 12®b)(5) motion but instead must be pleaded in an answer or in a motion for summary judgment.8
1 42Ruth addressed the method by which an affirmative defense could be sustained. Ruth, 158 Colo. at 229, 385 P.2d at 411-12. In that case, we held that the affirmative defense of issue preclusion or claim preclusion can be sustained by facts adduced at trial, by uncontroverted facts presented in a motion for summary judgment, or by a motion to dismiss that, "on the basis of facts properly presented outside of the pleadings," is converted into a motion for summary judgment. Id. at 229, 412, 385 P.2d 410.
€43 The parties dispute Ruth's meaning. Bristol Bay reads Ruth as providing the exclusive methods by which to sustain an affirmative defense, interpreting the case to hold that an affirmative defense may never be decided on a motion to dismiss without conversion. - Lampack and the Publishers focus on Ruth's "outside of the pleadings" language, contending that Ruth did not decide whether a motion to dismiss is proper when the existence of the affirmative defense is apparent from the face of the complaint-that is, when its existence is apparent from facts that are not "outside of the pleadings." They argue that federal authority is consistent with their interpretation.
1 44 Turning to federal authority, the cases appear relatively uniform that a complaint in federal court is subject to dismissal for failure to state a claim when the "allegations indicate the existence of an affirmative defense that will bar the award of any remedy." 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357, at 708 (8d ed.2004). For example, if the allegations in the complaint show that relief is barred by the applicable statute of limita-
tions, "the complaint is subject to dismissal for failure to state a claim; that does not make the statute of limitations any less an affirmative defense." Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). This exception to the general rule that affirmative defenses must be raised in an answer or in a motion for summary judgment appears to stem from the uncontroversial principle that a "litigant may plead itself out of court by alleging (and thus admitting) the ingredients of a defense." U.S. Gypsum Co. v. Ind. Gas Co., Inc., 850 F.3d 628, 626 (7th Cir.2003).
€45 Consistent with this narrow understanding, "the applicability of the defense has to be clearly indicated and must appear on the face of the pleading to be used as a basis for the motion." 5B Wright & Miller, Federal Practice and Procedure § 1857, at 708-18; see also Oshiwer v. Levin, Fishbein, Sedram & Berman, 88 F.8d 1880, 1884 n.1 (8d Cir. 1994) (limitations defense ordinarily cannot be raised in a motion to dismiss, but "an exception is made where the complaint facially shows noncompliance with the limitations period and the affirmative defense clearly appears on the face of the pleading"). With limited exceptions, affirmative defenses in federal court must be raised in responsive pleadings or in a motion for summary judgment, not in pre-answer motions brought under Fed.R.Civ.P. 12(b). See U.S. Gypsum Co., 350 F.3d at 626, Worldcom, Inc. v. Graphnet, Inc. 348 F.3d 651, 657-58 (8d Cir. 2003). We thus read the federal cases to provide for a narrow exception to the general rule that the appropriate vehicle for raising an affirmative defense is in an answer or in a motion for summary judgment. See World-com, Inc., 348 F.3d at 657-58.
[5] 146Ruth is not necessarily in conflict with this narrow exception in every context,9 [1165]*1165but conversion is nevertheless required in this case for two reasons. First, assuming Ruth permits dismissal on the narrow exception outlined above, the trial court here considered voluminous material from the California action, including pleadings, jury instructions, the jury's special verdict, hundreds of pages of trial transcripts, and affidavits from counsel.10 The trial court considered this material to determine the facts and issues decided in the California action, to weigh the relevance of any factual or legal differences, and to determine whether Bristol Bay had a full and fair opportunity to litigate. Lampack and the Publishers contend that the trial court took proper judicial notice of the material from the California action, and Bristol Bay does not appear to dispute this contention. Although a trial court may consider certain court records without converting a motion to dismiss into a motion for summary judgment, its power to do so is not unlimited. See Mun. Subdis-trict N. Colo. Water Conservancy Dist. v. OXY USA, Inc., 990 P.2d 701, 711 (Colo. 1999). Without having to address the specific contours of the judicial notice doctrine, a review of the trial court's order reveals that its consideration of the California court records, which included trial transcripts, as well as its consideration of affidavits from counsel, went beyond what is permissible absent conversion to a sumniary judgment motion. See Churchey v. Adolph Coors Co., 759 P.2d 1836, 1889 (Colo.1988) ("Because [defendant] attached affidavits and exhibits to its motion, the court properly treated [defendant's] motion as one for summary judgment."); Walker v. Van Laningham, 148 P.3d 391, 898 (Colo.App.2006) (holding that the trial court took proper judicial notice of a party's prior eriminal convictions and distinguishing the case from one involving "submission of hundreds of pages of documents, including affidavits"); see also 18 Moore's Federal Practice § 182.05[7] (the "appropriate vehicle" for raising a preclusion defense is in an answer or in a motion for summary judgment). - Because the trial court considered matters outside the pleadings, it was required to convert the motion to dismiss to a motion for summary judgment. See C.R.C.P. 12(b)(5).
[6,7] 147 Second, conversion is appropriate here Because this case involves a tort, which raises the specter of Colorado's attorney fee-shifting statute. The attorney fee-shifting statute is intended to apply only to "a narrow category of baseless tort cases, namely those cases that were so lacking in substance that they could not survive a motion to dismiss for failure to state a claim upon which relief could be granted." See EKrystkowiak v. W.O. Brisben Cos., 90 P.8d 859, 869 (Colo.2004). Here, Bristol Bay filed its complaint more than a year before judgment was entered in the California action and more than three years before that judgment was affirmed on appeal. At about the time Bristol Bay filed its complaint in the Colorado action, the California action had gone to trial, but the California jury had yet to return its special verdict. On these facts, Bristol Bay's Colorado action does not belong to that "narrow category of baseless tort cases" the statute is intended to curb.
{48 Hence, we hold that the trial court erred by dismissing Bristol Bay's Colorado action under C.R.C.P. 12(b)(5) without converting Lampack and the Publishers' motion to dismiss into a motion for summary judgment under C.R.C.P. 56, and we reverse that portion of the court of appeals' decision holding otherwise. Because C.R.C.P. 56 was the appropriate procedure to resolve this case,
[1166]*1166Bristol Bay is not liable for attorney fees under Colorado's attorney fee-shifting statute.
IV. Conclusion
49 For the reasons stated, we affirm that portion of the court of appeals' decision affirming the application of issue preclusion to bar Bristol Bay's Colorado action. We reverse that portion of the court of appeals' decision dismissing Bristol Bay's Colorado action under C.R.C.P. 12(b)(5) and remand the case to that court with directions to return it to the trial court for proceedings consistent with this opinion.
Justice RICE dissents, and Justice MARQUEZ and Justice BOATRIGHT join in the dissent.