concurring and dissenting.
I concur in the majority’s dispositions of issues one and five. I dissent to the disposition of issue two and would address and overrule issues three and four.
Issue two argues the trial court erred in refusing to allow cross-examination of Fletcher on the issue of her performance *672under the Agreement. Appellants claim an ultimate controlling issue in this case is whether Fletcher performed or tendered performance; that as a necessary part of her cause of action for breach of contract, Fletcher had to prove her performance; and that since Fletcher testified on her performance, appellants had the right to cross-examine her on the issue.
Fletcher’s trial counsel objected to the excluded evidence on the basis it was irrelevant because “defendants have admitted in their disclosure that the only reason for termination was the alleged statements to Mr. Ford and nothing else; and, therefore, it’s irrelevant to any issue in the case.” The trial court sustained the objection. Defense counsel responded, “First of all, the disclosure does not say that that’s [sic] the only reason for the termination. It says for violations of the agreement — various terms and conditions of the agreement, No. 1. No. 2, this letter goes to the issue of whether there have been violations of terms and conditions of the agreement. And for that reason, we’ve offered Defendant’s Exhibit No. 8; and that’s our response.” However, in their statement of facts, appellants note, “[a]s a result of a complaint by an insured, Joe Ford, Appel-lee was sent a letter giving her the option of the [sic] apologizing to Mr. Ford and the Company staff and continuing with the Company or being terminated for cause.”
Appellants’ brief fails to resolve, or even acknowledge, the variance between their position at trial and that on appeal. See Tex.R.App. P. 33.1. On appeal, appellants assert performance is an essential element in a breach of contract claim. See Frost Nat’l Bank v. Burge, 29 S.W.3d 580, 593 (Tex.App.—Houston [14th Dist.] 2000, no pet.). I agree, but that does not necessarily place every aspect of Fletcher’s performance at issue.
Appellants have never claimed that Fletcher did not, in fact, earn the commissions for which she filed suit and the evidence sought to be introduced only regarded Fletcher’s alleged violations of her contract. Fletcher was told she would be terminated if she did not apologize to Mr. Ford. She did not apologize and her checks quit coming. Following the other “violations” appellants sought to introduce, no such action was taken; indeed the record does not reflect any action, other than chastisement, was ever taken.
Furthermore, appellants do not identify which provisions of the agreement were violated, how such violations vitiated the contract, or the “ultimate issue” that Fletcher’s alleged past violations would prove. Appellants wholly fail to relate the excluded evidence to the agreement or explain the effect, if any, of such violations on their duty to pay Fletcher renewal commissions. This court has not the ability, nor even the right, to create a party’s argument out of whole cloth. See Tex. R.App. P. 38.1(h). As the party seeking reversal of a trial court’s discretionary decision, it was for appellants to explain and argue the relevance of the excluded evidence to the ultimate issue the jury was asked to resolve, i.e., did they owe Fletcher for the renewal commissions?
Appellants’ reliance upon the basic right to cross-examination is therefore misplaced because the right is neither absolute nor unlimited. Cross-examination is limited to “any matter relevant to any issue in the case” and “[e]vidence which is not relevant is inadmissible.” Tex.R. Evid. 611(b); Tex.R. Evid. 402. In Davidson v. Great Nat. Life Ins. Co., 737 S.W.2d 312, 314 (Tex.1987), the Court noted the importance of cross-examination:
Cross-examination is a safeguard essential to a fair trial and a cornerstone in the quest for truth. Longstanding *673principles of our jurisprudence recognize the right and necessity of full and complete cross-examination. “... [T]he right to cross-examine a witness is a substantial one, and it is error to so restrict it as to prevent the cross-examining party from going fully into all matters connected with the examination in chief.” Due process requires an opportunity to confront and cross-examine adverse witnesses.
Id. (quoting Texas Employers’ Ins. Ass’n v. Garza, 308 S.W.2d 521, 527 (Tex.Civ.App.—Amarillo 1957, writ ref'd n.r.e.)). As Davidson notes, the matter must be connected with the examination in chief for the restriction to be error. Id. Further, the error must be harmful. Id. It must have “probably caused the rendition of an improper judgment” in order to be reversible. See Tex.R.App. P. 44.1(a)(1).
Appellants make no attempt to connect the excluded evidence to the Agreement and provide no argument as to how the exclusion caused the rendition of an improper judgment. Accordingly, I cannot conclude the trial court’s determination the evidence was not relevant to any issue in this case constituted an abuse of discretion. See Minns v. Piotrowski, 904 S.W.2d 161, 172 (Tex.App.—Waco 1995, writ denied). I would overrule issue two.
In their third issue, appellants claim the trial court erred in refusing their request for a special issue on excuse. Assuming, without deciding, that their pleading is sufficient to raise the affirmative defense of excuse based upon Fletcher’s violation of the Agreement, appellants fail to inform the court what provisions of the Agreement were violated or how such violations excused their performance. Their argument under this point is based upon the denial of cross-examination on Fletcher’s alleged violations of the Agreement. As I believe there was no reversible error in that regard, I would overrule issue three.
Appellants’ fourth issue claims the trial court erred in refusing to allow Fletcher to be cross-examined on damages. On cross-examination, Fletcher was asked if the amount of $80,467 shown on her 1099 form was “just renewal commissions.” At that point, Fletcher’s counsel asked to approach the bench and a conversation occurred, off the record. The trial court then excused the jury and the following exchange took place.
THE COURT: [Defense], [Plaintiff] objects to your going into calculation of damages based upon your response, or I should say nonresponse, to the request for disclosure. The request for disclosure in standard form prescribed by the rules says the amount and any method of calculating economic damages.
Your response was: Defendants are not making a claim for damages in this suit, which I understand. Obviously, however, that doesn’t — the request for disclosure goes to the amount and any method of calculating economic damages for the plaintiff.
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It would make no sense- — if you had — if you had made no claim for damages, then — as you say, then — then obviously the request for disclosure is talking about the plaintiffs damages.
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And you did not respond to that. I — it seems to me on the face — let me finish, please sir.
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It seems to me that [Plaintiffs] argument is sound. If you have not suggested to [Plaintiff] through the disclosure process what the — what your position was, then you should not be permitted now, *674under the theory of complete disclosure, to — to contest the calculation of economic damages, which this clearly is.
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[DEFENSE] ... Exhibit No. 1 is the agent’s agreement. He’s asking for damages and calculation with this agent’s agreement. If you look at the agreement, the agreement specifically says that she’s entitled to one half of the renewal commissions for a period of 60 months. How can he prove his case unless he can establish what one half of the renewal commissions is? He’s got the burden of proving that. I don’t.
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And all — and all that I’m trying to do is establish what it is that she’s trying to calculate damages upon because frankly I think that it will be fundamental error to not permit me to cross-examine this witness on their theory of damages, not my theory of damages, but how they arrive at their calculation of damages predicated upon the document under which they seek recovery.
THE COURT: [Plaintiff]?
[PLAINTIFF]: Your Honor, I would feel that would be right had he in his disclosure said we contest your calculations, as I did in my disclosure, of your economic damages.
THE COURT: Did you disclose to him — ...—what your calculation was?
[PLAINTIFF]: Yes, I did. ■
And if he comes back and says, you know, I dispute that because these are not renewals, this is A, B, C, D, whatever, then he could do that.
THE COURT: When was — when was the response by the plaintiff filed? When was this response filed by [Defense]?
[PLAINTIFF]: June 28th, 1999, a year ago roughly.
THE COURT: All right. And when did the defendant have your response to the request for disclosure.
[PLAINTIFF]: I did several responses, your Honor .... July of ’99, February of 2000 — two different disclosures, in July of ’99 and February of 2000.
THE COURT: So, your — your responses were after the defendant’s response?
[PLAINTIFF]: After the defendant’s response.
THE COURT: Is there any law which suggests that there is a duty to update a response to a request for disclosure?
[PLAINTIFF]: I think it would be the same as an interrogatory or anything else if you found it to be wrong. Frankly, one of the reasons it was later is I think he asked me later, as far as the July one is concerned. I’m not under an obligation to sua sponte file one.
[DEFENSE]: Wait a minute. Originally — your original response said you wanted $450,00 in damages and then you filed an amended one subsequently and I want to say within the last month or two — ■
[PLAINTIFF]: February
[DEFENSE]: —that asked for this calculation of $90,000.
Your Honor, I have never run into this as a defendant in a situation where the plaintiff says, well, we don’t think you’ll ever be able to work again; therefore we want $4 million. I’ve never been able to run into this situation or I would have said, “Well, what do you calculate it’s worth?” I’ve never had to—
[PLAINTIFF]: I have, and I do.
[DEFENSE]: A general denial is sufficient to put all issues—
THE COURT: As a matter of pleading, I agree with you. We’re talking about *675discovery and disclosure and whether those créate limitations on — on the lawsuit. Surely they should — of if the idea is to — to limit the process to something that the other side knows about instead of trial by ambush.
I’m reading from O’Connor. For example, a plaintiff would be required to state how lost — how loss of past earnings and future earning capacity was calculated, comma, and a defendant in the same suit would be required to disclose any grounds for contesting the damage calculation.
What I understand [Plaintiff] to complain of is that nobody has told him up to now that you were going to complain that his calculation is incorrect.
[DEFENSE]: He didn’t make that inquiry, your Honor. That was not his inquiry. His inquiry was not are you contesting whether our damage calculation is incorrect. He asked us what our calculation of damages was, which is his damages. We’re not asking for any damages here. And I’m entitled — I’m entitled to cross-examine the witness as to their method of calculating their damages to determine exactly on what basis they arrived at those damages.
THE COURT: But he asked you to disclose what your method of calculating damages was, and you declined to give that to him.
[DEFENSE]: Well, I don’t think he was asking me — what I — what I declined to give to him was my calculation of economic damages in terms of the defendant because we had no economic damages.
THE COURT: No, sir, that’s not — I—• I — with all due respect, that’s not what the meaning — the clear and unambiguous meaning of the English language is.... The English language says the amount and any method of calculating economic damages.
It might be ambiguous if you were claiming damages, too. But at the time this was framed and until this very moment, you’ve never made a claim for economic damages. Accordingly, it could only refer to the plaintiffs calculation.
[DEFENSE]: Is the court saying that I will not be permitted to cross-examine this witness on how they arrived at their method of economic damages, your Honor?
THE COURT: Yes, sir, I am.
Rule 194.2(d) provides a party may request disclosure of the amount and any method of calculating economic damages. Tex.R. Civ. P. 194.2(d). Comment 2 provides that (d) is “intended to require disclosure of a party’s basic assertions, whether in prosecution of claims or in defense.” It further provides as example that in a claim for damages suffered in a car wreck, plaintiff would be required to state how loss of past earnings and future earning capacity was calculated and defendant “would be required to disclose ... any basis for contesting the damage calculations.” Tex.R. Civ. P. 194.2(d) cmt. 2.
Rule 193.6(a) further provides that “[a] party who fails to make, amend, or supplement a discovery response in a timely manner may not introduce in evidence the material or information that was not timely disclosed.” Tex.R. Civ. P. 193.6(a). Absent a showing of good cause, lack of unfair surprise, or lack of unfair prejudice, rule 193.6 mandates exclusion of the undisclosed material or information. See Elliott v. Elliott, 21 S.W.3d 913, 921 n. 7 (Tex.App.—Fort Worth 2000, pet. denied); Northwestern Nat. County Mut. Ins. Co. v. Rodriguez, 18 S.W.3d 718, 722 n. 1 (Tex.App.—San Antonio, 2000, pet. denied). The Supreme Court of Texas in Alvarado v. Farah Mfg. Co., Inc., 830 S.W.2d 911, 915 (Tex.1992), considering former Rule 215(5), refused to either disre*676gard its’ plain language prescribing a single sanction for failing to supplement discovery or revise the rule by opinion. The Court noted “the trial court has no discretion to admit testimony excluded by the rule without a showing of good cause.” Id. at 914. Under current Rule 193.6, it is only logical to extend that holding to the added exceptions of lack of unfair surprise or unfair prejudice. See Tex.R. Civ. P. 193.6(a)(2).
Appellants make no argument on appeal regarding Rule 193.6 — the basis for the trial court’s exclusion. Appellants do not argue they met their burden of establishing an exception to the automatic exclusion. See Tex.R. Civ. P. 193.6(b). Clearly, then, the trial court had no discretion to admit the evidence automatically excluded by the rule.
Appellants argue, as they did at trial, only that they had the right to cross-examine Fletcher about her method of calculating damages. As the bill of review demonstrates, appellants sought to contest Fletcher’s calculations — the very matter not disclosed in appellants’ discovery response. Appellants provide this court with no authority permitting them to do through cross-examination that which they are prohibited from doing by direct examination. The case of Kreymer v. North Tex. Mun. Water Dist., 842 S.W.2d 750, 753 (Tex.App.—Dallas 1992, no writ), is instructive on this issue. In that case, the trial court had allowed a witness who had been designated as an expert by both parties to testify on cross-examination about matters not testified to on direct examination. In finding the trial court did not abuse its discretion, the court declined to end the long-standing tradition in Texas of not limiting cross-examination to the scope of direct examination and the court noted:
The better rule is to require that the scope of the cross-examination fall within the designation of the testimony by either party. If a party has designated that the witness will testify on particular subjects, then the trial court should permit the other side to cross-examine the witness about those subjects, regardless of whether the witness testified to them on direct examination. Only if the scope of the cross-examination exceeds the designation of the expert’s testimony should the trial court require the cross-examining party to show good cause or risk having the scope of cross examination limited under rule 215(5). Tex.R. Civ. P. 215(5). If the scope of the cross-examination falls within the scope of the cross-examining party’s designation, then the testimony is still admissible on cross-examination.
This interpretation of the rules of procedure and evidence preserves the direct-examining party’s right not to have the witness testify beyond the scope of either party’s designation, and it preserves the cross-examining party’s right to examine a witness “on any matter relevant to any issue in the case, including credibility.” Tex.R. Civ. Evid. 611(b).
Id. Clearly, under current Rule 193.6, the trial court can limit cross-examination to the scope of the cross-examining party’s designation unless there is a showing of good cause, lack of unfair surprise, or lack of prejudice. It is equally clear that the trial court can limit cross-examination to the material or information that was timely disclosed in accordance with Rule 194.2; to avoid such limitations a party has only to comply with Rule 194 or establish one of the three exceptions.
I am aware that in this case the limitation prevented cross-examination of a vital issue. However, in Kidd v. Paxton, 1 S.W.3d 309, 312 n. 5 (Tex.App.—Amarillo 1999, pet. denied), the court noted that *677“failing to timely supplement discovery can lead to the exclusion of key evidence and effectively grant the opponent certain victory. Tex.R. Civ. P. 193.6.” I would overrule issue four.
I would affirm the judgment of the trial court.