¶ 18. (dissenting). The majority opinion reverses the order dismissing Peterson's complaint and concludes that she is a consumer under the Magnuson-Moss Warranty Act. I respectfully dissent from the majority opinion conclusion "that Peterson is a category two consumer permitted under the Act to enforce Volkswagen's written warranty." That conclusion is premature and unfair to the trial court and to the parties. I would vacate the order and remand for further consideration of the motion to dismiss by the trial court and the parties.
¶ 19. Peterson is a lessee of the Volkswagen vehicle. The majority opinion acknowledges that at the time of the dismissal order, February 26, 2003, existing case law supported the trial court's holding that a "lessee" was not a "consumer" under the Act. DiCintio v. DaimlerChrysler Corp., 768 N.E.2d 1121, 1124 (N.Y. 2002); Sellers v. Frank Griffin AMC Jeep, Inc., 526 So. 2d 147, 156 (Fla. Dist. Ct. App. 1988); and D.L. Lee & Sons, Inc. v. ADT Sec. Sys., Mid-South, Inc., 916 F. Supp. 1571, 1580 (S.D. Ga. 1995). Our primary function is error correcting, see Cook v. Cook, 208 Wis. 2d 166, 188, 560 N.W.2d 246 (1997), and normally that would *692settle the issue in favor of the trial court's order. However, the majority opinion, relying upon Cohen v. AM General Corp., 264 F. Supp. 2d 616 (N.D. Ill. 2003), concludes that DiCintio is wrongly decided and that Peterson is a category two consumer under the Act.1
¶ 20. The Cohen decision was released on March 10, 2003. The trial court was not aware of the Cohen analysis on February 26, 2003, when it applied DiCintio (issued February 13, 2002) and dismissed Peterson's complaint as not being cognizable under the Act. The parties have briefed Cohen's, impact on the appellate issue and we can review the Cohen argument even though the argument was not available to the trial court. See Harvest Sav. Bank v. ROI Invs., 209 Wis. 2d 586, 596, 563 N.W.2d 579 (Ct. App. 1997). Cohen concludes that "thepurpose of the transaction between [the buyer/lessor] and the [manufacturer] was not for resale, but for the lease of the vehicle to [the lessee]." Cohen, 264 F. Supp. 2d at 619. Cognitively, Cohen then concedes that "other courts have disagreed with this interpretation." Id.
¶ 21. One other court that is not in lockstep with Cohen is Voelker v. Porsche Cars North America, Inc., 353 F.3d 516 (7th Cir. 2003).2 Voelker (released Decem*693ber 12, 2003) returned to the analysis of "consumer" under 15 U.S.C. § 2301(3), rather than focusing on Cohen's reliance upon the definition of written "warranty" under 15 U.S.C. § 2301(6), to address whether lessee Voelker had standing as a consumer to assert a breach of written warranty claim. In doing so, Voelker specifically addressed and denied Voelker's standing as a category two consumer.
¶ 22. In denying category two consumer standing, the Voelker court asked "[H]as Voelker alleged facts that would show that he is 'any person to whom such product is transferred during the duration of [a] written warranty (or service contract) applicable to the product?' " Voelker, 353 F.3d at 524 (citing to 15 U.S.C. § 2301(3)). The Voelker court looked to the written warranty itself, attached to Voelker's well pled complaint, and determined that Voelker was not a category two consumer under the Act:
That warranty, however, did not begin until after possession of the car was transferred to Voelker, and not "during [the warranty's] duration." By its own terms, the warranty did not take effect until one of four antecedents occurred: "the date the car [was] first delivered to the first retail purchaser, or the date it [wa]s first used as a demonstrator, lease, or company car, whichever c[ame] first." The only triggering event that Voelker identifies is the date that the car was first used — by himself — as a lease car. Because the warranty did not begin until the date the car was "first used as a ... lease" car, the warranty did not begin until after [the lessee] took possession. Thus, Voelker has failed to allege that the car was "transferred [to him] during the duration" of the New Car Limited Warranty, and, *694accepting all of the allegations in his complaint as true, he does not qualify as a category two consumer.
Voelker, 353 F.3d at 524.
¶ 23. Peterson's complaint alleges that she took possession of the vehicle on May 27, 1999. Peterson further alleges that she is "a lessee of a consumer product who received the [Volkswagen vehicle] during the duration of a written warranty period applicable to the [vehicle] and who is entitled by the terms of the written warranty to enforce against Manufacturer the obligations of said warranty." (Emphasis added.) Unlike Voelker, however, Peterson neither attaches the Volkswagen written warranty to her complaint, nor provides the specific term(s) of the warranty that she relies upon in her complaint, to establish the factual support for her conclusory allegation. Even under Wisconsin's liberal pleading rules, Peterson has failed to present the critical facts in her complaint that would allow her to claim standing as a category two consumer under the Act.
¶ 24. A motion to dismiss for failure to state a claim tests whether the complaint is legally sufficient to state a claim for which relief may be granted. Doe v. Archdiocese of Milwaukee, 211 Wis. 2d 312, 331, 565 N.W.2d 94 (1997). If the written warranty of the Peterson vehicle commenced when it was "first used" as a lease car, as did Voelker's warranty, the complaint is not legally sufficient for Peterson to state a claim for relief as a category two consumer under the Magnuson-Moss Warranty Act, and that is the only issue presented in this appeal.3
*695¶ 25. Wisconsin's liberal Wis. Stat. § 802.02 "notice pleading" rule has limitations. Our supreme court has held that our rules of pleadings do not provide a "file first and ask questions later" approach to litigation. Jandrt ex rel. Brueggeman v. Jerome Foods, Inc. 227 Wis. 2d 531, 569, 597 N.W.2d 744 (1999). A plaintiff may not rely on formal discovery to establish the factual basis of its cause of action, thereby escaping the mandates of both Wis. Stat. §§ 802.05 and 814.025 "when the required factual basis could be established without discovery." Jandrt, 227 Wis. 2d at 568 (emphasis added). "Safe harbor," a pleading concept which excuses a complaint's uncertain or unclear factual allegations in order to allow facts to be ascertained with certainty and clarity through later discovery, is not necessary here and "does not relieve an attorney from establishing a factual basis for a claim when that basis could be established by means other than discovery." Id. There is no excuse for Peterson's failure to present in her complaint the written warranty that contains the specific terms upon which relief under her complaint must turn.
¶ 26. Voelker directs that whether Peterson is a category two consumer under the Act turns upon the language of the Volkswagen written warranty itself. The warranty was never provided to the trial court, nor is the warranty even in the appellate record. Liberal "notice pleading" does not equate to misleading, clever or inadequate pleading. Discovery is not necessary here to establish the written warranty upon which the totality of Peterson's claim for relief is based.
*696¶ 27. In sum, the trial court did not have the benefit, as do we, of either the Cohen or Voelker opinions. Peterson has not provided the written warranty itself as a basis to support her alleged standing as a category two consumer under the Act. I would vacate the order dismissing Peterson's complaint as being premature because it is unknown whether the written warranty supports Peterson's conclusory allegation that she took possession of the vehicle during the period the warranty was in effect. The motion to dismiss Peterson's complaint for failure to state a cause of action should be reinstated and the motion remanded to the trial court to allow an opportunity for the trial court and the parties to consider the same criteria that this court has taken the liberty to review, as well as the relevant portions of the written warranty that would establish whether or not Peterson is a category two consumer under a Voelker analysis.
The majority opinion also cites to Szubski v. Mercedes-Benz, U.S.A., L.L.C., 796 N.E.2d 81 (Ohio Com. Pl. 2003), Dekelaita v. Nissan Motor Corp. in USA, 799 N.E.2d 367 (Ill. App. Ct. 2003), and Voelker v. Porsche Cars North Am., Inc., 353 F.3d 516 (7th Cir. 2003). Szubski and Dekelaita are cited as being courts "of a similar mind" to Cohen v. AM General Corp., 264 F. Supp. 2d 616 (N.D. Ill. 2003). Voelker will be addressed later in this dissent.
Voelker was not only released after Cohen but cites to Cohen in its analysis of whether Voelker was a category one consumer. Voelker, 353 F.3d at 523. Voelker was aware of the *693Cohen decision when it held that Voelker did not qualify as a category two consumer and does not cite to Cohen as being relevant to that determination.
Cohen opines in its rationale that "[i]f [the lessees] are unable to [enforce the warranty], the assurances of the manufacturer are empty — no party would he able to enforce the *695warranty." Cohen, 264 F. Supp. 2d at 621. To the contrary, in Wisconsin both the lessor and lessee would have standing to enforce the written warranty under our Lemon Law. See Wis. Stat. § 218.0171.