VIRGINIA FRANCO, PETITIONER, VS. THE HON. INTERMEDIATE APPELLATE COURT AND ALEJANDRO D. ALMENDRAS, RESPONDENTS.

The petitioner, Virginia Franco, was employed by former Senator
Alejandro Almendras (hereafter “Almendras”)
on August 19, 1973 to
manage the sale, disposal, and marketing of the fish products of the Almendras Fishing Industry, a single proprietorship of Almendras.  She was
given a monthly salary of P1, 500 plus an incentive pay of one percent (1%) of
the gross sales.

On February 15, 1974,
she and Almendras entered into a partnership named
ADA CONSIGNMENT to engage in the business of receiving on consignment from
suppliers, milkfish and other kinds of fish for sale to retailers in
consideration of a 4% fee or commission for the partnership.  They further stipulated that Almendras would provide the capital of P50,000 for the operation of
the business, and the petitioner, as
industrial partner, would furnish her skill, know-how, and
industry.  The profits were to be divided
equally between them.  The partnership
was to exist for two years, but
it could be terminated earlier upon the violation of any of its terms by either
of the partners, plus payment of P5, 000 as damages by the guilty partner.

On January 2, 1972,
Almendras terminated the services of the petitioner
as manager of Almendras Fishing Industry, as well as
their partnership which had existed for only ten (10) months.

On April 8, 1975,
petitioner filed a complaint in the Court of First Instance of Rizal (Pasig)
for Accounting and Damages.  She asked for an accounting of the gross sales
of Almendras Fishing Industry to determine her one
percent (1%) incentive pay from the gross sales, which she estimated at no less
than P3,500,000. 
With respect to the operation of their partnership, ADA CONSIGNMENT, she
alleged that during its ten-month operation, the venture generated gross sales
of P1,400,000 from which she was entitled to a four percent (4%) share as
commission.  She asked for an accounting of the two ventures
because she had no access to the
books, record, and funds of the
two businesses, Almendras having appointed a
treasurer-cashier for the business.

Almendras denied the allegations of the complaint and
set up a counterclaim for monies due ADA CONSIGNMENT and Almendras
Fishing Industry, which the petitioner allegedly misappropriated.  He also demanded the return to him of certain
implements and fixtures used in the business, or their value.  He also demanded payment of damages, the
penalty provided in the partnership agreement, and attorney’s fees.  Petitioner denied the allegations of the
counterclaim.

The Court directed the
plaintiff, now petitioner, to designate an accountant to examine the books of
accounts in the possession of the defendant and the
parties agreed that the result of such examination, as well as the report
prepared by defendant’s accountant, would serve as basis for an amicable settlement of the case.

The pre-trial was reset
several times because petitioner’s accountant was not ready yet.  The Court reset the pre-trial conference for
the last time on September 3, 1976 with notice to both parties.

On that date, however,
neither the petitioner nor her counsel appeared.  Upon oral motion of the defendant, the Court
declared the petitioner non-suited.

On September
28, 1976, petitioner
asked the court to order the defendant to produce the books of account, but the
motion was declared moot as petitioner had already been non-suited.  Defendant was allowed to present
evidence in support of his counterclaim on October 4, 1976, and the case was submitted for decision
on the basis of said evidence.

On
November 11, 1976,
petitioner filed a motion for reconsideration of the Order declaring her
non-suited but to no avail.

On January 25, 1977,
the Court of First Instance of Pasig rendered a
decision for the defendant, the dispositive portion
of which reads:

“IN VIEW OF ALL THE FOREGOING, the Court hereby renders judgment in
favor of the defendant and against the plaintiff, to wit:

“(1) Plaintiff is ordered to pay defendant the sum of P70,747.35 representing the balance due from customers of the ‘Almendras Fishing Industry;’

“(2) Plaintiff is ordered to return to defendant the following
furniture and equipment:  One (1) steel
cabinet valued at P350.00; Two (2) office tables, P300.00; Two (2) chairs,
P150.00; One (1) sofa bed, P200.00; Two (2) benches, P20.00; Two (2) scales,
P2,000.00; Two hundred (200) ‘baneras,’ P3,500.00,
having a total value of P9,090.00.  In
the event, plaintiff cannot return all or any piece thereof, on account of loss or
destruction, plaintiff is ordered to pay defendant their price or that of any
piece thereof as above listed;

“(3) Plaintiff is ordered to pay defendant the sum of Five Thousand
Pesos (P5,000.00) as liquidated damages (penalty) and
the sum of Fifteen Thousand Pesos (P15,000.00) as attorney’s fees;

“(4) Plaintiff is ordered to pay the costs; and

“(5) The business or agency under the name ‘ADA Consignment’
entered into by the plaintiff and defendant is hereby declared dissolved.

“SO ORDERED.” (pp.
53-54, Record on Appeal; p. 38, Rollo.)

Petitioner appealed to the Court of Appeals which modified the
trial court’s decision by eliminating the liquidated damages and reducing the
attorney’s fees to P10,000.

Franco filed this petition for review on the ground that the Court of Appeals erred:

1. in upholding the trial court’s order
declaring her non-suited;

2. in giving
probative value to defendant’s Exhibit “3” in support of the counterclaim; and

3. in affirming the awards in favor of
the defendant.

The petition has no merit.

The petitioner was
properly declared non-suited.  As
observed by the Court of Appeals:

“The records show that plaintiff and counsel took it on themselves
to be absent from the September 3, 1976 pre-trial on three grounds – (1) that
plaintiff was ill; (2) that counsel had another case to attend to; and (3)
that, anyway, the accountant was present to inform the court that the report on
reconciliation of amounts would not be submitted because of defendant’s refusal
to show the books of account.

“The proper thing to do was to file a motion to postpone the
pre-trial, assuming the truth of the statements that plaintiff was ill and that
counsel had another case to attend to. 
This plaintiff did not do, obviously on the assumption that the presence
of the accountant was enough.  It is
clear to Us that both the plaintiff and her counsel
were guilty at least of disrespect to the Court.  Having lapsed into the error of not filling a
motion for postponement on grounds, one of which could have some validity, they
committed a yet bigger one in delegating to the accountant the duty to appear
for them.  Obviously, even if the
accountant’s presence was made known to the Court, matters could not have been
set right, for the simple reason that the accountant is not a party to the
case.” (p. 29, Rollo.)

The purpose of Section 2,
Rule 20 of the Rules of Court is to ensure the appearance of the parties at the
pre-trial conference (Junco vs. Court of Appeals, G.R. No. 78051, November 8,
1989).  Since the failure of the
petitioner to appear at the pre-trial was not due to fraud, accident, mistake
or excusable negligence, the appellate court did not err in upholding the trial
court’s nolle prosequi
order against her.

The second and third
assignments of error involve factual issues. 
Whether or not the petitioner is liable for the sum of P70,747.35 found by the auditor received by the petitioner from
customers of Almendras Fishing Industry, and whether
or not the other monetary awards are supported by the evidence, are factual
issues which this Court is disinclined to review except under special
circumstances which are not present in this case.  The general rule is that factual findings of
the lower courts are entitled to great weight and respect (Manahan vs. People,
167 SCRA 1; People vs. Alpetche,
168 SCRA 670).

WHEREFORE, the
petition for review is denied and the appealed decision of the Court of Appeals
is affirmed with costs against the petitioner.

SO ORDERED.

Narvasa, (Chairman), Cruz, Gancayco, and Medialdea, JJ., concur.