author: Berdon, J.

text:
    Presidential Capital Corporation v. Antonio Reale
    (15003)
    Peters, C. J., and Callahan, Borden, Berdon and Norcott, Js.

      Argued September 28
    decision released December 27, 1994

      Richard P. Weinstein, with whom, on the brief, were Jennifer C. Jaff and Peter Rustin, for the appellant-appellee (defendant).

      Michael D. O’Connell, with whom, on the brief, was Gary R. Brochu, for the appellee-appellant (plaintiff).
   Berdon, J.

In this action for breach of contract for failure to pay a commission, the defendant appeals and the plaintiff cross appeals from the judgment of the trial court rendered after a jury verdict for the plaintiff. The jury returned a verdict for the plaintiff in the amount of $375,000. The trial court denied the defendant’s motion for judgment notwithstanding the verdict but granted the defendant’s motion for a remittitur. On the motion for remittitur, the trial court ordered that the verdict be set aside unless the plaintiff remit $225,000 of the verdict, thereby agreeing to a judgment of $150,000. This appeal and cross appeal raise three issues: (1) whether the plaintiff had standing to bring this action; (2) whether the defendant was contractually obligated to pay a commission to the plaintiff; and (3) if so, whether the trial court was correct in ordering the remittitur. We conclude that the plaintiff had standing and that there was an enforceable contract, but that the court should not have ordered the remit-titur.

The following facts are not in dispute. The plaintiff, Presidential Capital Corporation, is a broker-dealer licensed to conduct business in the securities industry. As part of its business, the plaintiff solicits equity investors for various investments, including real estate syn-dications. Donald Motschwiller is the owner of the plaintiff.

Motschwiller learned of an investment opportunity involving the construction and operation of a hotel, casino and condominiums on an island known as Providenciales in a group of islands in the British West Indies known as Turks and Caicos (project). A cash investment of approximately $7.5 million was necessary to fund the project. Motschwiller first conducted “due diligence”—that is, an investigation of the project to determine whether it was feasible and whether it was the type of an investment in which the plaintiff should become involved. After confirming the project’s viability, Motschwiller surveyed the plaintiff’s network of broker-dealers to determine whether they were aware of any investors who might be interested in participating in the project.

Anthony Newfield, part of the plaintiff’s network of broker-dealers, indicated that the defendant, Antonio Reale, a client investor, was interested in being the single investor. In May, 1988, Motschwiller arranged for a meeting in Miami between the defendant and the developer, Thomas Manuel, to discuss the project. At the meeting, which was attended by Motschwiller, the defendant, the defendant’s accountant, Manuel and other interested persons, the parties agreed that, subject to certain conditions, the defendant would be the single investor for the project. On June 10, 1988, the defendant became committed to invest $7.5 million as the single investor.

The plaintiff brought this action against the defendant, alleging that the defendant had promised to pay the plaintiff’s agent, Motschwiller, a cash fee for introducing him to the project. The plaintiff sought as compensatory damages the “reasonable value” of its services, which the plaintiff alleged to be $375,000. The jury returned a verdict in favor of the plaintiff and awarded $375,000 in damages. The defendant then filed motions for judgment notwithstanding the verdict and for a remittitur. The trial court denied the motion for judgment notwithstanding the verdict, but granted the motion for a remittitur in the amount of $225,000. The defendant appealed and the plaintiff cross appealed.

I

First, the defendant claims that the plaintiff lacked standing to bring this lawsuit. Although this claim was not raised below, we address it on appeal because the claim implicates this court’s subject matter jurisdiction. Orsi v. Senatore, 230 Conn. 459, 470, 645 A.2d 986 (1994); Middletown v. Hartford Electric Light Co., 192 Conn. 591, 595, 473 A.2d 787 (1984).

“It is a basic principle of law that a plaintiff must have standing for the court to have jurisdiction. Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.” (Internal quotation marks omitted.) Unisys Corp. v. Dept. of Labor, 220 Conn. 689, 693, 600 A.2d 1019 (1991). The defendant bases his argument upon his claim that if there was any agreement to pay a commission, that agreement was between him and Newfield, not between him and the plaintiff. Therefore, according to the defendant, the plaintiff had no legal interest to be protected.

The defendant’s claim is wholly without merit. The plaintiff’s complaint alleged that the agreement was between the defendant and the plaintiff.* The jury returned a verdict for the plaintiff which, as we point out below, was supported by sufficient evidence. Clearly, the plaintiff had an interest in the controversy sufficient not only to maintain legal standing, but to win its lawsuit.

Moreover, even if we were to conclude that the jury’s verdict was not supported by sufficient evidence, that would not necessarily mean that the plaintiff lacked standing to bring its action in the first instance. “Standing is not shown never to have existed when a plaintiff loses his suit. Standing requires no more than a colorable claim of injury; a plaintiff ordinarily establishes his standing by allegations of injury. Similarly, standing exists to attempt to vindicate ‘arguably’ protected interests. Ducharme v. Putnam, 161 Conn. 135, 139, 285 A.2d 318 (1971); see also Assn. of Data Processing Service Organizations v. Camp, 397 U.S. 150, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970).” (Emphasis in original.) Maloney v. Pac, 183 Conn. 313, 321 n.6, 439 A.2d 349 (1981).

II

The defendant next claims that the trial court erred in denying his motion for judgment notwithstanding the verdict. He advances two grounds in support of his claim. First, he argues that there was insufficient evidence for a reasonable jury to conclude that the defendant had made an enforceable promise to pay the plaintiff. More specifically, he argues that any promises upon which the plaintiff relied to establish an oral agreement were too vague. Second, the defendant argues that, as a matter of law, there could be no enforceable contract in this case because neither party agreed upon the amount that the defendant was obligated to pay the plaintiff for its services. We disagree with both contentions.

We begin our analysis by noting our limited scope of review. “[0]ur review of a trial court’s refusal to direct a verdict or to render a judgment notwithstanding the verdict takes place within carefully defined parameters. We must consider the evidence, including reasonable inferences which may be drawn therefrom, in the light most favorable to the parties who were successful at trial . . . giving particular weight to the concurrence of the judgments of the judge and the jury, who saw the witnesses and heard the testimony .... The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached their conclusion. . . . John T. Brady & Co. v. Stamford, 220 Conn. 432, 440-41, 599 A.2d 370 (1991); Iseli Co. v. Connecticut Light & Power Co., 211 Conn. 133, 140, 558 A.2d 966 (1989).” (Citations omitted; internal quotation marks omitted.) Fleming v. Garnett, 231 Conn. 77, 83, 646 A.2d 1308 (1994).

Because the defendant claims that the jury could not reasonably or legally have found an enforceable contract, we must first consider the necessary elements of such an agreement. To be enforceable, an agreement “must be definite and certain as to its terms and requirements.” (Internal quotation marks omitted.) Dunham v. Dunham, 204 Conn. 303, 313, 528 A.2d 1123 (1987). “Whether and on what terms a contractual commitment has been undertaken are ultimately questions of fact” for the trier of facts. Rahmati v. Mehri, 188 Conn. 583, 587, 452 A.2d 638 (1982). “A manifestation of mutual assent may be made even though neither offer nor acceptance can be identified and even though the moment of formation cannot be determined.” 1 Restatement (Second), Contracts § 22 (2) (1981); Rahmati v. Mehri, supra, 587 and n.4.

There was substantial testimony regarding what had occurred at the Miami meeting. Both Motschwiller and Newfield testified that they had reminded everyone in attendance, including the defendant, that the plaintiff would be owed a fee if the defendant and the developer reached an agreement. They also testified that the defendant initially had balked at paying a commission. Motschwiller testified, however, that after the defendant had spoken with the developer, the defendant said he “would be responsible for paying the commission.” Newfield further testified that “Mr. Reale had said, ‘I’ll take care of the commissions’ because it didn’t seem like anybody else would agree to do that.”

The jury was entitled to credit the testimony of Motschwiller and Newfield. Fleming v. Garnett, supra, 231 Conn. 84; Berry v. Loiseau, 223 Conn. 786, 821, 614 A.2d 414 (1992). Accordingly, we conclude that the evidence was sufficient to permit a jury reasonably to find that the defendant had promised to pay the plaintiff a commission if the defendant became committed to the project as an investor. Indeed, at oral argument before this court, the defendant conceded this point.

Moreover, the defendant’s promise to pay a commission is not made unenforceable merely because he did not include the amount of the commission. We have long held that an agreement will not be rejected if the missing terms can be ascertained, either from its express terms or by fair implication. Augeri v. C. F. Wooding Co., 173 Conn. 426, 430, 378 A.2d 538 (1977). In a case such as this, where the plaintiff and the defendant have agreed that the defendant will pay for the plaintiff’s services but the agreement is silent as to the amount of compensation, the court may conclude that the defendant contemplated paying a reasonable fee. Pearl v. Nelson, 13 Conn. App. 170, 172, 534 A.2d 1257 (1988) (“[h]ere, there was an agreement for services to be performed and, since the fee was not fixed, the agreement contemplated a reasonable fee”); see 1 S. Williston, Contracts (4th Ed. Lord 1990) § 4.22, p. 518 (“a promise that one shall be well paid or providing for sufficient monies is interpreted as a promise for reasonable compensation”); J. Calamari & J. Perillo, Contracts (3d Ed. 1987) § 2-9, p. 57 (“[i]f A and B agree that A will perform a service for B and no mention is made of the price to be paid, it will be concluded that the parties intended that a reasonable price should be paid and received”).

Our conclusion in this regard is consistent with the holdings of courts in other jurisdictions. These courts, when faced with a promise to pay for services but no agreed price, have nevertheless found the contract to be enforceable. See, e.g., Olberding Construction Co. v. Ruden, 243 N.W.2d 872, 875 (Iowa 1976) (“where there is no agreement as to the amount of the compensation, the law implies a promise to pay reasonable compensation”); Dixon v. Kittle, 109 Ohio App. 257, 259, 164 N.E.2d 806 (1959) (“[w]here labor or materials are furnished by request and no price is agreed on, the law will imply an agreement to pay what they are reasonably worth” [internal quotation marks omitted]). Indeed, at least one court has applied this rule in order to determine the rate of commission a client was to pay his broker. See Charlotte Aircraft Corp. v. Braniff Airways, Inc., 497 F.2d 1016, 1017 (5th Cir. 1974) (if “there is no understanding as to a fixed rate of commission, the situation tends to require an inference that the grantor of the right to sell obligated himself to pay a reasonable commission”).

Accordingly, the trial court properly denied the defendant’s motion for judgment notwithstanding the verdict.

Ill

Finally, both parties challenge the trial court’s order that the plaintiff file a remittitur of $225,000, which would reduce the amount of the plaintiff’s recovery to $150,000. The plaintiff, on cross appeal, argues that the court acted improperly in ordering any remittitur. The defendant, on the other hand, argues that if the court correctly found that the parties had agreed to a commission of $150,000, it should have ordered a remittitur of $300,000 in order to reduce the plaintiffs recovery to $75,000. The defendant bases his argument on his claim that any promise he made was to the plaintiff and Newfield as partners. The defendant argues, therefore, that the plaintiff is entitled to only one half of a $150,000 commission, or $75,000. We shall address the claims seriatim.

A

We review the remittitur issue in the context of the state constitutional right to trial by jury, which “includes the right to have the jury, rather than the court, pass upon the factual issue of damages, when there is room for a reasonable difference of opinion among fair-minded [persons] as to the amount which should be awarded.” (Internal quotation marks omitted.) Seals v. Hickey, 186 Conn. 337, 351, 441 A.2d 604 (1982). The trial court may order a remittitur if it concludes, as a matter of law, that the verdict is excessive. General Statutes § 52-216a; Berry v. Loiseau, supra, 223 Conn. 808-809. The trial court, however, did not find that the jury’s verdict of $375,000 was excessive. Rather, it predicated its conclusion that a remittitur should be ordered on two premises: (1) that it had improperly instructed the jury on damages; and (2) that the parties had agreed to the measure of damages as being $150,000. Neither of these premises is correct.

First, the trial court concluded that it had improperly instructed the jury when, in determining the reasonable value of the plaintiff’s services, the court allowed the jury to consider the customs and practices of the trade. According to the court, there was no evidence that “the parties agreed that customs and practices would be the test for determining the amount of the commission.” We disagree with the trial court’s analysis and conclude that the jury was properly instructed on the issue of damages.

It is true that before custom and usage of the trade can supplement or qualify an agreement, each party must know or have reason to know of that usage. See L. F. Pace & Sons, Inc. v. Travelers Indemnity Co., 9 Conn. App. 30, 38-39, 514 A.2d 766, cert. denied, 201 Conn. 811, 516 A.2d 886 (1986); 2 Restatement (Second), Contracts § 221 (1981). In this case, however, the instructions to the jury on custom and usage as they pertained to damages did not supplement or qualify the agreement. The court simply instructed the jury that if it found that the plaintiff and the defendant had entered into a contract under which the defendant was to pay the plaintiff a commission, and the defendant breached that agreement, the jury should determine the damages based upon the reasonable value of the plaintiffs services. As we stated previously, that term of the contract—the reasonable value of the services— was implied not as a result of the custom or usage of the industry but by operation of law. The court further instructed the jury that, as evidence of the reasonable value of the plaintiff’s services, it could take into consideration the “rates of compensation . . . ordinarily paid according to the customs and practices of the securities industry for the performance of like services.”

In determining a reasonable value, a court may properly instruct the jury to consider the customs and practices of the profession or industry. See J. White & R. Summers, Uniform Commercial Code (2d Ed. 1980) § 3-7, p. 118 (“[i]f there is sufficient evidence of price based on . . . usage of trade, this will determine ‘reasonable price’ whether or not that price is equivalent to the market price”). It is not necessary for both parties to be consciously aware of the trade usage. Id., § 3-3, p. 98. The court acted properly, therefore, when it allowed the jury to consider the custom and usage of the profession in determining the amount of the reasonable commission owed to the plaintiff.

Second, the trial court’s premise that the plaintiff and the defendant agreed to what would constitute reasonable compensation is not supported by the evidence. Although subsequent to the defendant’s commitment to become the single investor the parties discussed a settlement of $150,000, both the plaintiff and the defendant agree on appeal that they did not enter into such an agreement because they could not agree on the time for payment. The trial court, therefore, was not correct in finding an agreement in the amount of $150,000 or in ordering a remittitur of $225,000 to establish a judgment for the plaintiff in that amount.

B

The defendant argues that the trial court should have ordered a remittitur in the amount of $300,000. According to the defendant, the trial court’s order of a remittitur of $225,000 was based on the court’s determination that the defendant had promised to pay a $150,000 commission. The defendant argues, however, that any promise he made to pay a commission was a promise to the plaintiff and Newfield as partners. The defendant argues, therefore, that the trial court should have ordered a remittitur of $300,000 in order to reduce the plaintiff’s judgment to $75,000, the amount it alone was entitled to receive.

The defendant’s argument fails for two reasons. First, as we have indicated, the trial court’s order for any remittitur was improper. Second, the trial court properly rejected the defendant’s argument that his promise was to Newfield and the plaintiff as partners. This case was tried on the theory that Newfield was an agent, not a partner, of the plaintiff, and the court so instructed the jury. We ordinarily decide the appeal on the theory on which the case was tried and determined in the trial court. See, e.g., Lashgari v. Lash-gari, 197 Conn. 189, 196, 469 A.2d 491 (1985).

The jury returned a verdict for the plaintiff based on the agency theory. It is properly the role of the jury, as the finder of fact, to determine to whom the defendant owed the commission and on what terms. See Cohen v. Holloways’, Inc., 158 Conn. 395, 409-10, 260 A.2d 573 (1969). The jury’s finding that the agreement was between the defendant and the plaintiff alone was supported by sufficient evidence. Motschwiller, for example, testified at trial that the discussion in Miami centered around the fact “that a commission is to be paid to [the plaintiff].” Newfield also testified that if the defendant had paid him a commission, he would have turned it over to the plaintiff. The trial court, therefore, was correct in refusing to order a remittitur in the amount of $300,000, which would have reduced the plaintiff’s verdict to $75,000.

Accordingly, we conclude that the plaintiff had standing to bring this action and we affirm the trial court’s denial of the motion for judgment notwithstanding the verdict. The judgment is reversed with respect to the order of remittitur and the case is remanded with direction to render judgment for the plaintiff on the verdict of $375,000.

In this opinion the other justices concurred.

       The appeal and the cross appeal from the judgment of the trial court were taken to the Appellate Court and we transferred both appeals to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       Throughout his brief and at oral argument before this court, the defendant referred to this motion interchangeably as a motion for judgment notwithstanding the verdict and as a motion to set aside the verdict. Like the trial court, we will follow the language used by the defendant in the motion itself and treat it as a motion for judgment notwithstanding the verdict.

       Although we typically are not bound to consider a claim that was not raised before the trial court, a challenge to the subject matter jurisdiction of a court may be raised at any time. DiBerardino v. DiBerardino, 213 Conn. 373, 376-77, 568 A.2d 431 (1990).

       At oral argument, the defendant expanded this claim. He argued that even if he had agreed to pay for the services of the plaintiff, that agreement was between Newfield and the plaintiff as partners and the defendant. Apparently, without articulating it as such, the defendant claimed that Newfield, who testified at trial on behalf of the plaintiff, was an indispensable party. Therefore, the defendant argues, because Newfield was not a party, the trial court did not have subject matter jurisdiction. See W. G. Glenney Co. v. Bianco, 27 Conn. App. 199, 201-204, 604 A.2d 1345 (1992); W. Moller & W. Horton, Connecticut Practice—Practice Book Annotated, Superior Court Civil Rules (3d Ed. 1989) § 100, p. 264, comment, and (Sup. 1992) § 100, p. 63, comment. As we indicate in part III B of our opinion, however, there was sufficient evidence at trial to support the jury’s finding that the agreement was between the defendant and the plaintiff alone. Therefore, the defendant’s argument is without merit.

       The complaint alleged the following: “The plaintiff, through one of its licensed agents did in fact introduce the defendant to the venture and was instrumental in facilitating a business agreement between the defendant and ‘The Project.’ ” The court instructed the jury, without exception by the defendant, as follows: “[T]he plaintiff, Presidential Capital Corporation, is claiming that it, through its agent, Anthony Newfield and its president, Donald Motschwiller, introduced the defendant, Antonio Reale, to the Turks and Caicos project at the request of Thomas Manuel.”

       See part II of this opinion.

       Commentators and other courts have followed this approach as well. The supplied terms, referred to by Professors Calamari and Perillo as “gap-fillers,” “ ‘are implied not because they are just or reasonable, but rather for the reason that the parties must have intended them and have only failed to express them ... or because they are necessary to give business efficacy to the contract as written, or to give the contract the effect which parties, as fair and reasonable [persons], presumably would have agreed if, having in mind the possibility of the situation which had arisen, they contracted expressly in reference thereto.’ ” J. Calamari & J. Perillo, Contracts (3d Ed. 1987) § 2-9, p. 57, quoting Barco Urban Renewal Corp. v. Housing Authority, 674 F.2d 1001, 1007 (3d Cir. 1982); see also 2 Restatement (Second), Contracts § 204 (1981) (“[w]hen the parties to a bargain sufficiently defined to be a contract have not agreed with respect to a term which is essential to a determination of their rights and duties, a term which is reasonable in the circumstances is supplied by the court”).

       This holding renders moot the defendant’s claim that the trial court was incorrect when it instructed the jury that it could determine damages based upon the reasonable value of the plaintiff’s services. For the reasons stated in this opinion, we conclude that the trial court correctly instructed the jury.

       General Statutes § 52-216a provides in pertinent part: “If the court at the conclusion of the trial concludes that the verdict is excessive as a matter of law, it shall order a remittitur and, upon failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial.”

       Section 221 of the Restatement (Second) of Contracts (1981) provides in part: “An agreement is supplemented or qualified by a reasonable usage with respect to agreements of the same type if each party knows or has reason to know of the usage and neither party knows or has reason to know that the other party has an intention inconsistent with the usage.”

       The trial court instructed the jury on damages in pertinent part as follows: “Now, let’s discuss damages. You get to the question of damages only if you first decide that there was a binding, oral contract. And, second, that the defendant breached the contract. If you conclude there was a valid contract and the defendant broke his contract with the plaintiff it will then be necessary for you to determine the amount of the damages the plaintiff should recover. . . . If you decide that the plaintiff is entitled to recover for its services the amount of that recovery is determined by their reasonable value.
      “Now, there was some testimony that certain rates of compensation are ordinarily paid according to the customs and practices of the securities industry for the performance of like services. Relevant customs and practices may be established by the testimony of witnesses who have had experience in the transactions involved and who can testify to the facts constituting the alleged custom or usage. In order to render the testimony of a witness as to a general custom relevant and competent it must appear that he has full knowledge and sufficient experience on the subject about which he speaks. Where evidence of a trade custom or usage is pertinent to the issues of a case, as it is in the case before you, then evidence of a trade custom or usage may be proved by the testimony of witnesses who are engaged in the particular trade and familiar with its practices. A custom or usage can only be proved by numerous instances of actual practices and not by the mere opinion of a witness. Proof of isolated instances in which a particular practice was followed does not establish custom and usage.
      “If you find that the plaintiff has proved, by a fair preponderance of the evidence, what the customs and practices of the securities industry was, then payment to the plaintiff at that rate could be the sum which he would be entitled to recover for people ordinarily pay for services what they are reasonably worth to them. However, all the circumstances should be taken into consideration in determining what is the reasonable value of the plaintiff’s services. Reasonable value means such a sum of money as is fair in view of the nature of the services performed, any special problems or difficulties involved, the skill and judgment required and used, and any particular qualifications which the party rendering the services had and were required for the work he has to do, the results he in fact accomplished, and any other circumstances that you find proven which are relevant and material in the determination of what was the reasonable value of the services.
      “In brief, the measure of the plaintiff’s damages is the reasonable value of its services and the plaintiff has the burden of proof by a fair preponderance of the evidence to show you what the reasonable value of its services was. And you take into consideration all the surrounding circumstances in determining what the reasonable value of the plaintiff’s services was.”


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    Jeremias Molinas v. Commissioner of Correction
    (14963)
    Peters, C. J., and Callahan, Borden, Berdon, Norcott, Katz and Palmer, Js.

      Argued November 2
    decision released December 27, 1994

      Edward T. Ricciardi, assistant state’s attorney, with whom, on the brief, was John A. Connelly, state’s attorney, for the appellant (respondent).

      Christopher C. Sheehan, deputy assistant public defender, for the appellee (petitioner).
   Peters, C. J.

The principal issue in this appeal is whether a criminal defendant who is now indigent waived the right to challenge the constitutionality of his incarceration by having previously agreed to a sentence that includes a “committed fine” as part of a bargained-for guilty plea. The petitioner, Jeremias Molinas, filed a petition for habeas corpus, alleging, inter alia, that he was incarcerated solely because of his inability to pay a criminal fine, in violation of his rights to due process and equal protection. The habeas court granted the petition, ordering the petitioner released on parole and remitting the balance of the fine. The respondent, the commissioner of correction (commissioner), appealed from the judgment of the habeas court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm.

The record discloses the following undisputed facts. In 1989, the petitioner pleaded guilty, as part of a plea bargain agreement with the state, to one count of possession of narcotics with intent to distribute in violation of General Statutes § 21a-278. The trial court sentenced the petitioner to twelve years imprisonment, execution suspended after seven years, five years probation and a $20,000 fine. As part of the sentence, the trial court stated that the “defendant shall stand committed for payment of that fine.” Upon defense counsel’s inquiry, the court confirmed that it had ordered a “committed fine.”

On March 23,1993, the petitioner was paroled from his prison term, effective August 1,1993. The petitioner remained incarcerated, however, because he had not paid the fine.

The petitioner subsequently filed this petition for habeas corpus challenging his continued incarceration. Following a full hearing on the habeas petition, the habeas court found that “the petitioner’s failure to pay the fine results from his financial inability to do so rather than from a willful disregard of his duty to pay.” In response to the commissioner’s argument that the petitioner had waived any right to relief by agreeing to the “committed fine” when he entered the guilty plea, the court found that “[t]he transcripts of the petitioner’s plea canvass and sentencing hearing are devoid of any mention that failure to pay the fine would extend the length of the petitioner’s imprisonment. Nor does the record disclose that the petitioner was so advised of this possibility by his counsel. There was no discussion by the trial court with the petitioner that an indigent person cannot be incarcerated solely because he is unable to pay a fine nor that the petitioner was willing to give up that right in order to participate in the plea agreement. Also, his counsel made no reference, on the record, to off the record discussions with the petitioner regarding this waiver.” The habeas court held, therefore, that the petitioner had not waived his right to challenge his incarceration for his nonwillful failure to pay the fine. Accordingly, the court ordered the petitioner released. In addition, the court remitted the balance of the fine.

The commissioner challenges the validity of the judgment of the habeas court on three grounds. First, as a legal matter, the commissioner argues that the court improperly concluded that the petitioner, by agreeing to a plea bargain that included a “committed fine” as part of the sentence, did not thereby waive whatever constitutional protections might apply to him because of his indigency. Second, as a factual matter, the commissioner argues that the habeas court improperly found the petitioner to be indigent. Third, as a remedial matter, the commissioner claims that even if the habeas court properly determined that the petitioner was entitled to be released, the court abused its discretion in remitting the entire outstanding balance of the fine. We disagree with each of these contentions.

I

In order to assess the commissioner’s claim that the petitioner should be held to have waived his right to challenge the validity of his incarceration on the ground of indigency, it is important to review the underlying constitutional right on which the petitioner relies. In a series of cases evolving out of Griffin v. Illinois, 351 U.S. 12, 19, 76 S. Ct. 585, 100 L. Ed. 891, reh. denied, 351 U.S. 958, 76 S. Ct. 844, 100 L. Ed. 1480 (1956) (right of indigent criminal defendant to trial transcript at public expense), the United States Supreme Court has articulated constitutional principles that protect criminal defendants from being punished on account of their indigency. In Williams v. Illinois, 399 U.S. 235, 241, 90 S. Ct. 2018, 26 L. Ed. 2d 586 (1970), the court held that “an indigent criminal defendant may not be imprisoned in default of payment of a fine beyond the maximum authorized by the statute regulating the substantive offense.” The following term, the court held that “ ‘the same constitutional defect condemned in Williams also inheres in jailing an indigent for failing to make immediate payment of any fine, whether or not the fine is accompanied by a jail term and whether or not the jail term of the indigent extends beyond the maximum term that may be imposed on a person willing and able to pay a fine.’ ” Tate v. Short, 401 U.S. 395, 398, 91 S. Ct. 668, 28 L. Ed. 2d 130 (1971), quoting Morris v. Schoonfield, 399 U.S. 508, 509, 90 S. Ct. 2232, 26 L. Ed. 2d 773 (1970) (White, J., concurring). Even more significantly, in the context of a probation revocation hearing instigated because of the probationer’s failure to pay a fine, the court subsequently held that “if the probationer has made all reasonable efforts to pay the fine or restitution, and yet cannot do so through no fault of his [or her] own, it is fundamentally unfair to revoke probation automatically without considering whether adequate alternative methods of punishing the defendant are available.” Bearden v. Georgia, 461 U.S. 660, 668-69, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983).

Our own statutes and case law incorporate the same principles. “The impact of indigency on a criminal defendant’s liability to pay a fine is codified in Practice Book [§§ 929, 931 and 932].” State v. Johnson, 228 Conn. 59, 61, 634 A.2d 293 (1993). These sections provide that “[n]o person shall be incarcerated as a result of his failure to pay a fine unless the judicial authority first inquires as to his ability to pay the fine.” Practice Book § 929. Further, “[t]he judicial authority may, upon a finding that the defendant is able to pay the fine and that his nonpayment is wilful, order the defendant incarcerated for nonpayment of the fine.” Practice Book § 931. Finally, “[a] defendant incarcerated under Sec. 931, for wilful nonpayment of a fine, shall be released when he pays the fine or when he is otherwise discharged according to law.” Practice Book § 932. These sections are “rooted in the constitutional principle that the state may not ‘subject a certain class of convicted defendants to a period of imprisonment beyond the statutory maximum solely by reason of their indigency.’ Williams v. Illinois, [supra, 399 U.S. 242]; see also Bearden v. Georgia, [supra, 461 U.S. 664]; Moscone v. Manson, 185 Conn. 124, 130, 440 A.2d 848 (1981); State v. Zakrzewski, 26 Conn. App. 716, 718, 603 A.2d 432 (1992).” State v. Johnson, supra, 61.

In the circumstances of this case, unless the petitioner had effectively waived his rights, these constitutional principles required the petitioner’s release from incarceration. The petitioner faced a situation analytically indistinguishable from that confronting the probationer in Bearden. Although the petitioner was never released from incarceration prior to the habeas proceedings, the parole board’s decision to grant parole conferred upon the petitioner a significant liberty interest. See Morrissey v. Brewer, 408 U.S. 471, 482, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972) (“the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty”). The testimony at the habeas proceedings indicated, and the habeas court found, that following the board’s decision the only barrier to the petitioner’s release on parole was his failure to pay the fine and that this failure resulted solely from the petitioner’s indigency. As the Ninth Circuit Court of Appeals recognized, prior to Bearden, in a decision relating to a committed fine imposed upon an indigent defendant, “[i]f, under the sentence imposed, the defendant, because of [his or] her financial inability to pay a fine, will be imprisoned longer than someone who had the ability to pay the fine, then the sentence is invalid . . . (Citations omitted.) United States v. Estrada de Castillo, 549 F.2d 583, 584 (9th Cir. 1976).

II

The commissioner does not dispute the habeas court’s characterization of the underlying constitutional principles that govern the incarceration of indigent defendants. His principal contention is that, by accepting a plea bargain that included a “committed fine,” the petitioner definitively waived any constitutional right that he might otherwise have had to invoke indigency as a ground for his nonpayment of the fine. We are unpersuaded.

The principles that govern the waiver of a constitutional right are well established. For a waiver of a constitutional right to be effective, it must be made knowingly, voluntarily and intelligently. “A waiver is defined as ‘an intentional relinquishment or abandonment of a known right or privilege’. . . .” Staton v. Warden, 175 Conn. 328, 334, 398 A.2d 1176 (1978), quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938); Talton v. Warden, 171 Conn. 378, 385, 370 A.2d 965 (1976). “As the United States Supreme Court stated in McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969), a waiver ‘cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.’ ” Barlow v. Lopes, 201 Conn. 103, 111, 513 A.2d 132 (1986).

In the context of a habeas challenge to a plea bargain, we have applied this standard to the review of the validity of an alleged waiver of the statutory right to appeal a separate conviction. “Since a decision to waive one’s statutory right to appeal cannot be said to be knowingly, voluntarily and intelligently made if based upon a misapprehension as to the effect of this action . . . prior to the acceptance of an agreement to waive an appeal pursuant to a plea bargaining arrangement, care should be taken to inform the accused of the appellate rights to which he is entitled and to the consequences of this decision.” (Citation omitted.) Staton v. Warden, supra, 175 Conn. 336. Before a defendant can be held to have waived his right to appeal a separate conviction, the record, therefore, must affirmatively disclose that the defendant was apprised of the possible merits of an appeal. Barlow v. Lopes, supra, 201 Conn. 110; Staton v. Warden, supra, 335.

We discern no reason for departing from this standard in the circumstances of this case. To establish a valid waiver of the petitioner’s claim of indigency, the commissioner would have had to have made an affirmative showing that the petitioner, at the time of the plea bargain, was apprised of, and understood, the contours of the constitutional right not to be incarcerated because of indigency and the consequences of a waiver of that constitutional right. Such an affirmative showing would require evidence that the petitioner had been advised that: (1) he had a constitutional right not to be incarcerated solely because of his inability to pay a fine; (2) he would waive that right by agreeing to the committed fine; (3) the effect of a waiver would be that he would not be released on parole until the fine was paid, regardless of the reason for its nonpayment; (4) to pay off the committed fine, he would earn credits during his incarceration, subsequent to his parole, in accordance with a disclosed rate schedule; and (5) he would retain the right to pay the outstanding balance of the fine at any time during his incarceration and could thereby remove his ineligibility for early release. In the absence of any such showing, the commissioner’s categorical claim of waiver cannot be sustained.

The requirements for a knowing, voluntary and intelligent waiver are not diminished by the fact that the alleged waiver occurred in the context of a plea bargained sentence. The plea bargain itself did not alert the petitioner to the right at issue because its alleged impact on his continued incarceration did not become apparent until several years later, when his parole became effective. See State v. Johnson, 29 Conn. App. 584, 589, 617 A.2d 174 (1992) (“a challenge to the fine imposed is not ripe for review until the failure to pay becomes the cause of any prolonged incarceration”), appeal dismissed, 228 Conn. 59, 634 A.2d 293 (1993); State v. Zakrzewski, supra, 26 Conn. App. 719. A guilty plea does not foreclose a petitioner from challenging any constitutional defect in the sentence that arises subsequent to the plea. Cf. Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973) (a defendant who has pleaded guilty “may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea” [emphasis added]).

Similarly, a guilty plea itself does not establish an inference of waiver even though the guilty plea resulted in a sentence more favorable to the petitioner than he might otherwise have received. “[W]e recognize that the better the bargain, the more likely the petitioner would voluntarily have waived his right .... Such a bargaining process cannot, however, displace the requirement that the petitioner be fully informed so that his choice to bargain away his right . . . is made knowingly and intelligently.” Barlow v. Lopes, supra, 201 Conn. 114. Any other rule would mean, as a practical matter, that no challenge to an alleged waiver arising out of a bargained-for guilty plea could ever be reviewed, because agreement to a plea bargain presupposes that the petitioner initially perceived the bargain to be favorable.

For these reasons, we reject the commissioner’s claim that the petitioner has waived his right to assert his indigency as a ground for an order releasing him from further incarceration. The record supports the findings of the habeas court that the petitioner, in pleading guilty, did not knowingly, voluntarily and intelligently waive his right not to be incarcerated for his subsequent nonwillful failure to pay the fine.

Ill

In the alternative, if we were to disagree with his argument that the petitioner waived his constitutional claim as a matter of law, the commissioner challenges the validity of the trial court’s factual finding that the petitioner is indigent. Absent a showing of indigency, the petitioner would not be entitled to the benefit of the constitutional safeguards that the habeas court invoked on his behalf.

In making its finding of indigency, the habeas court observed: “When first incarcerated, the petitioner attempted to run a restaurant operation [that he owned] from prison without success. The business went bankrupt. As a result of his conviction and incarceration, the petitioner lost his job at a Waterbury shelter. This case appears to the court to be one where the petitioner genuinely lacks the economic wherewithal to meet the fine, and not one where the petitioner has squandered resources, otherwise available to pay the fine, for other purposes. The petitioner’s failure to pay the fine up to this point, even though payment would have resulted in his immediate release into the community on parole as early as some six months ago, strongly indicates to the court that the petitioner is truly unable to garner the funds necessary to pay the fine.”

The commissioner maintains that, in making this finding, the court improperly failed to evaluate the resources of the petitioner’s family. In support of his position that the habeas court was required to look beyond the petitioner’s own assets, the commissioner cites language from Bearden v. Georgia, supra, 461 U.S. 668, that a defendant must make “all reasonable efforts” to pay the fine. In particular, the commissioner emphasizes that the petitioner’s family previously had raised sufficient funds to post a pretrial bond and pay private counsel.

Assuming the accuracy of the legal standard advocated by the commissioner, we are nonetheless persuaded that the habeas court’s finding of indigency was adequately supported by the record. Nothing in the record of the proceedings before the habeas court indicates that it limited its inquiry to the petitioner’s personal assets. Indeed, the last sentence of the finding quoted above strongly suggests otherwise. Furthermore, testimony at the habeas hearing suggested that the liquid assets that had been used by the family to post the pretrial bond no longer were available for payment of the fine. In light of this record, we conclude that the habeas court’s factual finding of indigency was not clearly erroneous.

We therefore conclude that the habeas court made a proper finding concerning the petitioner’s indigency. Accordingly, we concur in its conclusion that the petitioner is entitled to be released from incarceration in accordance with the order of parole.

IV

Lastly, we address the commissioner’s argument that, even if the petitioner was entitled to be released, the habeas court improperly remitted the outstanding balance of the petitioner’s fine. The commissioner maintains that the court’s decision to release the petitioner from further incarceration did not require the court also to remit his fine, and that the court’s decision to do so was an abuse of its discretion.

We agree with the commissioner that the constitutional violation found by the habeas court did not compel the remedy of remission. The right identified in the Bearden line of cases protects only against incarceration on the basis of indigency. The “ ‘[sjtate is not powerless to enforce judgments against those financially unable to pay a fine.’ ” Bearden v. Georgia, supra, 461 U.S. 672; Tate v. Short, supra, 401 U.S. 399; Williams v. Illinois, supra, 399 U.S. 244. The United States Supreme Court has, for example, sanctioned the use both of extensions of the time period for payment and of sentences of community service in lieu of payment as permissible means by which the state may enforce its penological interests against indigent criminal defendants. See Bearden v. Georgia, supra, 672.

The habeas court was empowered, nonetheless, to remit the fine if it judged that “such course will tend to the reformation of offenders or the furtherance of the ends of justice.” General Statutes § 54-74. Although the habeas court did not explain why it decided to remit the fine, the evidence in this case established that the petitioner had been incarcerated for a period of almost eight months after he should have been released on parole. In light of that factual background, and the commissioner’s apparent failure to propose alternate sanctions to the habeas court, we conclude that the habeas court did not abuse its discretion by deciding to remit the fine.

The judgment is affirmed.

In this opinion the other justices concurred.

       The petitioner’s third amended habeas petition, dated September 10, 1993, is in three counts. In count one, he asserts that his incarceration for inability to pay the fine violates the due process clause of the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. In count two, he asserts that this incarceration also violates the equal protection clause of the fourteenth amendment and article first, § 20, of the state constitution. In count three, the petitioner asserts that he was denied effective assistance of counsel in violation of the sixth and fourteenth amendments and article first, § 8, of the state constitution. The habeas court granted the motion to quash count three, and the petitioner has not challenged that decision on appeal.

       As of the date of the habeas hearing, the outstanding amount on the fine had been reduced to $16,520 due to credits the petitioner had received for the time served. After the petitioner had been paroled from the prison sentence, the state had credited twenty dollars against the outstanding balance of the fine for each day of the petitioner’s continued incarceration, applying the rate codified at General Statutes § 18-50.

       General Statutes § 21a-278 (formerly § 19-480a) provides in relevant part: “PENALTY FOR ILLEGAL MANUFACTURE, DISTRIBUTION, SALE, PRESCRIPTION OR ADMINISTRATION BY NON-DRUG-DEPENDENT PERSON, (a) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person one or more preparations, compounds, mixtures or substances containing an aggregate weight of one ounce or more of heroin, methadone or cocaine or an aggregate weight of one-half gram or more of cocaine in a free-base form or a substance containing five milligrams or more of lysergic acid diethylamide, except as authorized in this chapter, and who is not, at the time of such action, a drug-dependent person, shall be imprisoned for a minimum term of not less than five years nor more than twenty years; and, a maximum term of life imprisonment. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.”

       The terms of the initial plea bargain called for the petitioner to plead guilty in return for a sentence recommendation by the state of twelve years imprisonment.

       No previously reported case in any Connecticut state court employs the term “committed fine.” Federal regulations provide that “[i]n any case in which a prisoner shall have had a fine imposed upon him by the committing court for which he is to stand committed until it is paid or until he is otherwise discharged according to law, such prisoner shall not be released on parole or mandatory release until payment of the fine, or until the fine commitment order is discharged according to law under the regulations of the Bureau of Prisons. Discharge from the commitment obligation of any committed fine does not discharge the prisoner’s obligation to pay the fine as a debt due the United States.” (Emphasis added.) 28 C.F.R. § 2.7 (a) (1994); see also Solomon v. Elsea, 676 F.2d 282, 284 n.1 (7th Cir. 1982).

       The petitioner’s probation records indicate that the board of parole released the petitioner “to Detainer ([$]20,000 committed fine).” In the habeas proceedings, the records supervisor at the Webster Correctional Institution testified that, following the board’s decision, the petitioner would have been released on parole once the outstanding balance on the fine had been paid.

       Although the trial court specifically asked the petitioner whether he understood that, by entering a guilty plea, he would be waiving his rights against self-incrimination, to confrontation and to a jury trial, the court never mentioned the right not to be incarcerated on the basis of indigency. The entire discussion concerning the “committed fine” during the plea canvass consisted of the following exchange:
      “The Court: Now, you understand that I have indicated to your lawyer that all things being equal, that I would impose a sentence in this case of twelve years suspended after eight years with a five year period of probation and a twenty thousand dollar committed fine. Do you understand that?
      “The [Petitioner]: Yes, I do.”

       The United States Supreme Court has recognized that “[d]ue process and equal protection principles converge in the Court’s analysis in these cases.” Bearden v. Georgia, supra, 461 U.S. 665. The court illustrated this point in Bearden, in which the petitioner’s probation had been revoked for failure to pay a fine, explaining that “[tjhere is no doubt that the State has treated the petitioner differently from a person who did not fail to pay the imposed fine and therefore did not violate probation. To determine whether this differential treatment violates the Equal Protection Clause, one must determine whether, and under what circumstances, a defendant’s indigent status may be considered in the decision whether to revoke probation. This is substantially similar to asking directly the due process question of whether and when it is fundamentally unfair or arbitrary for the State to revoke probation when an indigent is unable to pay the fine.” Id., 665-66; compare Williams v. Illinois, supra, 399 U.S. 241 (employing equal protection analysis) with id., 259-66 (Harlan, J., concurring) (employing due process analysis). Because the habeas petition in this case contains both due process and equal protection claims, we need not decide whether our decision is more appropriately grounded in a due process or an equal protection analysis.

       At the time that this case arose, the rules of practice did not address whether a judicial authority was required to determine whether a defendant, who had been imprisoned under a sentence of incarceration and also ordered to pay a fine, had the ability to pay the fine as a condition of his continued incarceration after the period of incarceration had been served. Effective October 1, 1994, Practice Book § 932A now provides: “When a defendant has been sentenced to a term of imprisonment and ordered to pay a fine, the mittimus shall state that if the fine has not been paid by the time the sentence has been served the defendant may not continue to be incarcerated unless the judicial authority has found that the defendant is able to pay the fine and that the defendant’s nonpayment is wilful.”

       In his brief to this court, the commissioner asserted that the habeas court exceeded the scope of the petition when it inquired whether the petitioner’s consent to the sentence at the plea canvass constituted a knowing and voluntary relinquishment of his right not to be incarcerated on the basis of indigency. According to the commissioner, the only issues properly before the habeas court were the due process and equal protection claims themselves. In raising these claims, however, the petitioner also necessarily raised by implication the claim that his rights to due process and equal protection had not been knowingly and voluntarily waived by his guilty plea. Furthermore, in his special defenses to the habeas petition, the commissioner himself directly raised the question of whether the petitioner could challenge his incarceration when he alleged that, at the time of the plea, the petitioner “understood” the sentence that was to be imposed.

       Although the United States constitution does not provide a defendant the right to appeal a criminal conviction; see Griffin v. Illinois, supra, 351 U.S. 19; McKane v. Durston, 153 U.S. 684, 687-88, 14 S. Ct. 913, 38 L. Ed. 867 (1894); we have held that “a defendant’s statutory right to appeal is fundamental and must be‘jealously protected’ . . . .” (Citations omitted.) Barlow v. Lopes, supra, 201 Conn. 109.

       The petitioner has not argued that the constitutional rights at issue in this case can never be waived.

       Since a committed fine only prevents a convicted defendant from being granted early release when the fine has not been paid; see footnote 5; in no event could the period to be served for failure to pay the fine exceed the amount of time remaining on the defendant’s prison sentence. Cf. United States v. Estrada de Castillo, supra, 549 F.2d 584. For example, had the petitioner in this case been found not to be indigent, his incarceration for failure to pay the $20,000 fine could not have continued beyond the three years that remained on his seven year sentence at the time he was paroled from his prison term to the fine. Expiration of the prison term before the fine had been paid in full, however, while requiring that a defendant be released, would not automatically relieve the defendant of the obligation to pay or work off the fine. See part IV of this opinion.

       We need not decide whether, under other circumstances, a waiver of the constitutional rights at issue here may require additional disclosures beyond those we have specified today.

       Accordingly, we do not reach the petitioner’s assertion that the judgment of the habeas court could also be affirmed on the alternate ground that the fine initially imposed by the trial court was not authorized under the relevant statutes. See General Statutes §§ 21a-278, 53a-41 and 53a-44. We note that the petitioner failed to raise this claim in the habeas court.

       The commissioner did not avail himself of the opportunity to file a motion for articulation. Practice Book § 4051.

       The effective date of the petitioner’s parole was August 1,1993. The petitioner was not released, however, until after the Appellate Court refused to stay the habeas court’s judgment in late March, 1994.


author: Borden, J.

text:
    James Mulligan v. F. S. Electric et al.
    (14981)
    Peters, C. J., and Borden, Norcott, Katz and Palmer, Js.

      Argued October 25
    decision released December 27, 1994

      Diane D. Duhamel, with whom were Robert L. Trow-bridge and, on the brief, David W. Schoolcraft, for the appellants-appellees (defendants).

      Ian A. Cole, for the appellee-appellant (plaintiff).
   Borden, J.

The issues in this appeal and cross appeal are: (1) under General Statutes § Sl-SOTb, the extent to which an employee must recover from an injury prior to returning to work in order to qualify for workers’ compensation benefits under General Statutes (Rev. to 1989) § 31-307b after a relapse from recovery; and (2) whether an injured employee’s workers’ compensation benefit rate, as defined by General Statutes (Rev. to 1989) §§ 31-307 and 31-310, should be determined, in the case of a traumatic injury, by reference to the employee’s earnings preceding the date on which he was injured or preceding the date on which he became incapacitated. The respondents, F. S. Electric (F. S.) and its workers’ compensation insurer, Transamerica Insurance Company (Transamerica), appeal from the decision of the workers’ compensation commission compensation review board (board) reversing a workers’ compensation commissioner’s denial of § 31-307b benefits to the claimant, James Mulligan. The claimant cross appeals from the decision of the board affirming the commissioner’s determination that benefits should be calculated on the basis of the claimant’s earnings prior to his injury. We affirm on the appeal, reverse on the cross appeal and remand for a recalculation of benefits accordingly.

The following facts are undisputed. On July 16,1987, the claimant sustained an accidental injury to his lower back in the course of and arising out of his employment by F. S., when, while climbing a ladder to install lighting, he felt a pop in his back. Although the injury was compensable, the claimant did not miss any work or claim any benefits until more than two years later, when the claimant’s physician certified that as a result of the injury, the claimant had become totally disabled. The claimant was out of work from September 23, 1989, to December 5, 1989, during which time he received temporary total disability compensation pursuant to § 31-307. On December 5, 1989, the claimant returned to work with the permission of his physician and without any medical restrictions, and, therefore, his § 31-307 payments ceased. Although the claimant continued to experience symptoms related to his 1987 injury and continued to receive medical treatment, he continued to work until February 16, 1990, when he again became totally disabled as a result of the original 1987 injury.

In the proceedings before the commissioner, the claimant contended that the compensation rate for both periods of disability should be calculated on the basis of his earnings during the twenty-six week period immediately preceding each period of incapacity, while the respondents claimed that the compensation should be based on the claimant’s earnings during the twenty-six week period prior to his July 16, 1987 injury. The commissioner agreed with the respondents and based the calculation of benefits on the claimant’s earnings prior to his injury.

The claimant also asserted a claim for benefits pursuant to § 31-307b, which provided that “[i]f any employee who receives benefits under section 31-307 returns to work after recovery from his injury and subsequently suffers total or partial incapacity caused by a relapse from the recovery from, or a recurrence of, such injury, such employee shall be paid a weekly compensation equal to” the greater of his § 31-307 benefits or benefits based on his compensation during the twenty-six weeks preceding the relapse or recurrence. The commissioner concluded that, although the claimant had returned to work, he had not “recovered” from his injury because, while working from December 5, 1989, to February 16,1990, he continued to experience symptoms, receive medical treatment, and take prescribed medication. The commissioner, therefore, denied the claimant’s request for § 31-307b benefits.

Challenging both conclusions, the claimant appealed to the board, which affirmed the commissioner’s calculation of benefits based on the date the claimant sustained his injury, but reversed the commissioner’s denial of § 31-307b benefits and remanded the matter to the commissioner for determination of the claimant’s § 31-307b benefits. This appeal and cross appeal followed.

I

The respondents claim on their appeal that, because § 31-307b benefits are available only to an incapacitated employee who had returned to work after recovery from the injury that caused his initial incapacity, the board improperly reversed the commissioner’s denial of benefits. In this case, although the claimant returned to work, he still continued to experience symptoms, take prescription medication and receive treatment and therefore, the respondents argue, he did not return “to work after recovery from Ms injury.” (Emphasis added.) General Statutes (Rev. to 1989) § 31-307b. We agree with the board that the claimant need only have recovered sufficiently to have returned to work with medical permission to be entitled to § 31-307b benefits on a relapse or recurrence of the injury.

The dispositive issue is the meaning of the phrase “returns to work after recovery from his injury” in § 31-307b. The respondents argue that the commissioner gave proper effect to the meaning of “after recovery from his injury” as intended by the legislature in § 31-307b. We agree with the conclusion of the board, however, that the commissioner improperly-determined that the claimant had not recovered when he returned to work. We reach our conclusion on the basis of our interpretation of the language of § 31-307b as applied to the facts of this case.

“It is axiomatic that the process of statutory interpretation involves a reasoned search for the intention of the legislature.” In re Valerie D., 223 Conn. 492, 512, 613 A.2d 748 (1992); Lauer v. Zoning Commission, 220 Conn. 455, 459-60, 600 A.2d 310 (1991). “In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . Ambroise v. William Raveis Real Estate, Inc., [226 Conn. 757, 764, 628 A.2d 1303 (1993)]; see Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, 227 Conn. 848, 852-57, 633 A.2d 305 (1993).” (Citations omitted; internal quotation marks omitted.) State v. Metz, 230 Conn. 400, 409, 645 A.2d 965 (1994); Fleming v. Garnett, 231 Conn. 77, 91-92, 646 A.2d 1308 (1994).

Under the language of § 31-307b, a claimant qualifies for benefits only when he suffers a relapse or recurrence after he had returned to work “after recovery from his injury.” Although the extent of recovery required is not defined by the statute, the legislative history surrounding this provision is instructive.

When it was originally enacted in 1967, § 31-307b provided for benefits following a relapse after an employee “returns to work after maximum recovery from his injury.” (Emphasis added.) Public Acts 1967, No. 842, § 28, codified as General Statutes (Cum. Sup. 1967) § 31-307b. In the parlance of workers’ compensation law, maximum recovery is reached when there is no reasonable prognosis for further recovery, whether the worker has recovered fully from his injury or has recovered only partially but will never fully recover. See, e.g., McCurdy v. State, 227 Conn. 261, 630 A.2d 54 (1993). In 1969, the General Assembly amended § 31-307b by eliminating the word “maximum.” Public Acts 1969, No. 696, § 6.

The respondents and the claimant agree that elimination of the word “maximum” from the statute means that a worker need not have fully recovered, or have recovered to the greatest extent possible, before returning to work, in order to qualify later for benefits pursuant to § 31-307b. The respondents claim that the legislature, by eliminating the modifier “maximum” without also redefining the extent of recovery necessary for eligibility for § 31-307b benefits, intended to leave wholly to the discretion of the commissioner the extent to which recovery was required in any individual case. We disagree.

The respondents have offered no basis for their conclusion beyond asserting that this is the plain meaning of the legislature’s words. To the contrary, our analysis of the language, read in the light cast by its legislative history, leads us to conclude that the legislature intended any degree of recovery, coupled with a return to work with medical permission, to be sufficient for an incapacitated worker to qualify for benefits pursuant to § 31-307b, if he later becomes incapacitated due to a relapse or recurrence of his injury.

House Bill No. 6311, enacted as No. 696 of the 1969 Public Acts, consisted of numerous amendments to our Workers’ Compensation Act. Included among them was the creation of cost of living adjustments for injured workers. In § 6 of the bill, the legislature granted this cost of living adjustment to workers who had reached recovery, but then suffered a relapse. Representative Dominic J. Badolato offered an amendment to the bill that eliminated the word “maximum” from § 31-307b. In offering this amendment, Representative Badolato stated that to leave the word “maximum” in the statute “would exclude from the benefits of the statutes one who is convalescing but anxious to rehabilitate himself sufficiently to return to gainful employment.” (Emphasis added.) 13 H.R. Proc., Pt. 8, 1969 Sess., p. 4010. In light of the apparent intent of the legislature to adopt a standard that would grant benefits to an incapacitated employee who had recovered sufficiently to return to work, we decline to adopt the respondents’ construction, which would allow the commissioner to grant or deny benefits without adherence to any governing standard.

Using the standard intended by the legislature, we conclude that any totally incapacitated employee who returns to work with medical permission has done so “after recovery from his injury.” A worker is entitled to total disability payments pursuant to § 31-307 only when his injury results in a “total incapacity to work,” which we have defined as “the inability of the employee, because of his injuries, to work at his customary calling or at any other occupation which he might reasonably follow.” Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 456, 78 A.2d 339 (1951); Revoir v. New Britain, 2 Conn. App. 255, 259, 477 A.2d 161 (1984). We can see no rational explanation for how a worker who is physically unable to work can return to work without at least some degree of “recovery” from his injuries.

It is undisputed that the claimant was entitled to temporary total disability payments pursuant to § 31-307 for the duration of his first period of incapacity, and that he thereafter returned to work with medical permission with no medical restrictions. Applying our interpretation of the words “returns to work after recovery from his injury” to the factual findings of the commissioner, we conclude that the board properly determined that the claimant qualified for benefits pursuant to § 31-307b.

The respondents also argue that, even if the board’s interpretation of § 31-307b is valid, the commissioner’s finding that the claimant had not recovered from his injury prior to returning to work was a factual finding entitled to deference by the board. We disagree.

“The power and duty of determining the facts rests on the commissioner, the trier of facts. . . . [T]he conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) Crochiere v. Board of Education, 227 Conn. 333, 347, 630 A.2d 1027 (1993). The underlying facts that led the commissioner to conclude that the claimant had not recovered, namely, that the claimant continued to experience symptoms, to receive treatment from his physician and to take prescription medication, were factual findings. The commissioner’s conclusion based on these facts, however, namely, that the claimant had not recovered before returning to work, was a conclusion of law based on an application of the legal meaning of “after recovery from his injury” to the underlying facts. In reversing the commissioner, the board did not disturb the commissioner’s factual findings, but rather reversed his legal conclusion on the basis of his incorrect application of the law to those facts.

II

The claimant argues on the cross appeal that the board improperly affirmed the commissioner’s determination that the claimant’s benefits should be calculated on the basis of his earnings preceding his injury. We agree with the claimant that the calculation should have been based on his earnings preceding his incapacity.

Section 31-307 provides that compensation is based on a percentage of the claimant’s “average weekly earnings at the time of the injury,” and § 31-310 provides that “[f]or the purposes of this chapter, the average weekly wage shall be ascertained by dividing the total wages received by the injured worker from the employer in whose service he is injured during the twenty-six calendar weeks immediately preceding that during which he was injured, by the number of calendar weeks during which, or any portion of which, such worker was actually employed by such employer . . . .” (Emphasis added.) General Statutes (Rev. to 1989) § 31-310. The claimant argued before the board that Rousu v. Collins Co., 114 Conn. 24, 157 A. 264 (1931), Michna v. Collins Co., 116 Conn. 193, 164 A. 502 (1933), and Stevens v. Raymark Corp./Raybestos Manhattan, 28 Conn. App. 226, 610 A.2d 710, cert. denied, 223 Conn. 921, 614 A.2d 830 (1992), stand for the proposition that this language refers to the date of the claimant’s incapacity, not the date of his injury, when the two dates are different. The board rejected this argument, reading our holding in Rousu and its progeny to pertain only to incapacity arising out of an occupational disease or similar circumstance where a specific date of injury is not discernible. We agree with the claimant’s reading of our longstanding construction of this language.

In Rousu v. Collins Co., supra, 114 Conn. 24, the claimant, Rousu, was disabled on December 16,1930, by the occupational disease pneumoconiosis, which was found to be directly traceable to his employment with the Collins Company as a wet grinder between 1917 and 1922. Id., 26. The commissioner awarded benefits based on Rousu’s average weekly wage preceding the last day he did wet grinding, which was calculated to be $20.24 per week. The employer appealed, arguing that the benefits should have been calculated based on Rousu’s average weekly wage preceding his disability in 1930, which was calculated to be $14.54. Id., 30. This court determined that the correct calculation was that based on Rousu’s earnings preceding his disability in 1930.

Our decision rested on the fact that while “[i]n the usual case of an industrial accident, the injury and the incapacity are substantially coincident . . . [i]n cases like the present, where a considerable period . . . intervenes between the actual injury and the consequent incapacity, determination as to whether the date of the former or the latter is to be taken as the basis of the award becomes of practical importance. There can be no compensation without incapacity. Compensation under our Act is based upon incapacity, total or partial, and hence is based upon loss of earning power. . . . The just measure of the value of the earning power of an employee and the correlative loss incurred by him would seem to relate to his earnings at the time the loss occurs through incapacity to work, rather than his earnings at an earlier time, perhaps so remote that, through changing conditions, personal or industrial, or both, his earnings at that time no longer accurately or correctly reflect the present value of the earning power of the workman.” (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 30-31; see also Michna v. Collins Co., supra, 116 Conn. 198 (“we still regard the views expressed [in Rousu] as reflecting the true intent and meaning of the statutes involved”); Stevens v. Raymark Corp./Raybestos Manhattan, supra, 28 Conn. App. 228 (“[t]he applicable case law provides that the relevant date for determining compensation to an injured worker is the date of his incapacity to work”).

The respondents assert that the board correctly determined that Rousu and its progeny are applicable only in cases involving disability caused by an occupational disease. They argue that the date of incapacity is used in such cases only because the date of the worker’s injury is not ascertainable. We disagree.

Although the respondents are correct that Rousu and its progeny did concern disability caused by occupational diseases, an inability to determine when the injury occurred was not the touchstone of our decision in Rousu. Indeed, in Rousu, we had to determine when the injury occurred in order to resolve a threshold issue in the case, which was whether Rousu was entitled to any compensation at all. The disease from which Rousu was suffering first became compensable under the compensation law in 1919. Because Rousu was engaged in wet grinding both before and after the time of the amendment, his employer claimed that he was therefore ineligible for compensation. We determined that Rousu was eligible for compensation, relying on a presumption that, in the absence of a showing that the disease existed earlier, the date of injury was the last date of employment in the job that caused the occupational disease. We had already determined a date of injury, therefore, before we addressed the question of whether to calculate benefits on the basis of earnings preceding the date of injury or preceding the date of incapacity. The respondents’ reading of Rousu, therefore, rests on a predicate that was not present in the case, namely, that the date of injury in an occupational disease case is not ascertainable. Because the holding of Rousu was not the rule of convenience argued for by the respondents, but rather an implementation of the legislature’s intent to compensate an incapacitated worker based upon his loss of earning power, it applies with equal force to a claim arising out of a traumatic injury as to a claim arising out of an occupational disease.

The respondents further claim that the legislature codified the respondents’ view of the rule established in Rousu when it amended § 31-307 to provide specifically that “[i]n the case of an occupational disease, the time of injury shall be the date of total or partial incapacity to work as a result of such disease.” General Statutes (Rev. to 1989) § 31-307. The respondents argue that because the legislature specified only that the benefits calculation for occupational disease claims is to be based on earnings prior to incapacity, the legislature intended traumatic injuries to be treated differently. We disagree.

Number 80-124 of the 1980 Public Acts, entitled “An Act Concerning the Date of Filing and the Time of Injury for an Occupational Disease Claim Under the Workers’ Compensation Act,” had two provisions. The first provided for an extension, from one year to three years from the first manifestation of symptoms, of the time allowed in which an individual may file a claim for disability arising out of an occupational disease. See General Statutes (Rev. to 1981) § 31-294 (repealed and recodified as General Statutes § 31-294c). The second provision was that at issue in this case. We conclude, on the basis of the legislative history, that the legislature did not intend to limit our holding in Rousu to cases involving occupational diseases.

In discussion of the bill on the Senate floor, Senator Michael J. Skelley remarked that the bill would ensure that the workers’ compensation scheme “deals with all disabilities evenly—meaning that if an individual has a physical disability, is put out of work, that he collects his worker’s comp according to his present earnings. The occupational disease will be handled in a similar manner.” (Emphasis added.) 23 S. Proc., Pt. 3, 1980 Sess., p. 631. Representative Walter J. Henderson stated on the floor of the House of Representatives that the purpose of the bill was to treat workers affected by occupational diseases in the same manner as those suffering from traumatic injuries. “In this bill we are trying to treat occupational disease as closely as we can to other kinds of injury, such as losing a hand or breaking a back. In cases like that, the compensation depends upon what they are making when the injury occurs. This bill makes sure that in occupational disease cases the rate is figured the same way. . . . This ensures that a worker who suffers from an occupational disease gets compensation based on what he was earning when he was forced to stop because of the disease.” (Emphasis added.) 23 H.R. Proc., Pt. 12, 1980 Sess., pp. 3457-58.

Contrary to the respondents’ assertions, this debate indicates that the legislature did not intend to disturb our holding in Rousu that the proper measure of compensation is based on the worker’s lost earning power. Indeed, there is no evidence from the floor debate that the legislature had any concern with an inability to determine the date of injury in a case of occupational disease. As evident from the floor debate, the legislators acted with an awareness that in the vast majority of traumatic injury cases, the date of injury and the date of incapacity are the same. This does not mean, however, that the legislature intended to abrogate the rule in Rousu in those rare cases where it is applicable to a worker incapacitated by traumatic injury. Under the respondents’ reading of the statute, all incapacitated workers suffering from an occupational disease or suffering from a traumatic injury that caused immediate incapacity would receive workers’ compensation benefits based on their earnings preceding their incapacity. Only those few workers, such as the claimant, suffering from traumatic injuries that cause delayed incapacity would not be compensated on the basis of their earnings preceding their incapacity. Those workers would receive benefits calculated on the basis of their earnings preceding their injuries, regardless of whether such a calculation would result in benefits representative of their lost earning power. Given the legislature’s intent to treat injured workers equally and to provide all incapacitated workers with compensation based on their loss of earning power, we decline to adopt this anomalous result.

The decision of the compensation review board is affirmed on the appeal, reversed on the cross appeal, and the case is remanded to the board for a recalculation of benefits accordingly.

In this opinion the other justices concurred.

       During the relevant time period, General Statutes (Rev. to 1989) § 31-307b provided: “benefits after relapse from recovery, recurrent injuries. If any employee who receives benefits under section 31-307 returns to work after recovery from his injury and subsequently suffers total or partial incapacity caused by a relapse from the recovery from, or a recurrence of, such injury, such employee shall be paid a weekly compensation equal to sixty-six and two-thirds per cent of his average weekly earnings at the time of the original injury or at the time of his relapse or at the time of the recurrence of such injury, whichever is the greater sum, subject to the maximum rate of compensation set pursuant to section 31-309 for the year in which such employee suffered the relapse or recurrent injury and the minimum rate under this chapter for said year, and provided (1) such compensation shall not continue longer than the period of total or partial incapacity following the relapse or recurrent injury and (2) no employee eligible for compensation for specific injuries set forth in section 31-308 shall receive compensation under this section. Such employee shall also be entitled to receive the cost-of-living adjustment provided in accordance with the provisions of section 31-307a, commencing on October first following the relapse or recurrent injury which disables him. If such injury occurred originally prior to October 1, 1969, the difference between the employee’s original weekly compensation rate and the rate required by this section and the cost-of-living adjustment, if any, thereafter due shall be paid initially by the employer or his insurance carrier who shall be reimbursed therefor from the second injury fund as provided by section 31-354 upon presentation of such vouchers and information as the treasurer shall require. In no event shall such employee receive more than the prevailing maximum benefits.” The statute has been amended in respects not relevant to this appeal.

       During the relevant time period, General Statutes (Rev. to 1989) § 31-307 provided in relevant part: “compensation for total incapacity. If any injury for which compensation is provided under the provisions of this chapter results in total incapacity to work, there shall be paid to the injured employee a weekly compensation equal to sixty-six and two-thirds per cent of his average weekly earnings at the time of the injury; but the compensation shall in no case be more than the maximum weekly benefit rate set forth in section 31-309 for the year in which the injury occurred .... In the case of an occupational disease, the time of injury shall be the date of total or partial incapacity to work as a result of such disease. No employee entitled to compensation under this section shall receive less than twenty per cent of the maximum weekly compensation rate, as provided in section 31-309, provided such minimum payment shall not exceed eighty percent of the employee’s average weekly wage, as determined under section 31-310; and such compensation shall not continue longer than the period of total incapacity. . . The statute has been amended in respects not relevant to this appeal.
      During the relevant time period, General Statutes (Rev. to 1989) § 31-310 provided in relevant part: “determination of average weekly wage OF INJURED WORKER. CONCURRENT EMPLOYMENT. PAYMENTS FROM SECOND injury fund. For the purposes of this chapter, the average weekly wage shall be ascertained by dividing the total wages received by the injured worker from the employer in whose service he is injured during the twenty-six calendar weeks immediately preceding that during which he was injured, by the number of calendar weeks during which, or any portion of which, such worker was actually employed by such employer, but, in making such computation, absence for seven consecutive calendar days, although not in the same calendar week, shall be considered as absence for a calendar week. When the employment commenced otherwise than at the beginning of a calendar week, such calendar week and wages earned during such week shall be excluded in making the above computation. When the employment previous to injury as provided above is computed to be less than a net period of two calendar weeks, his weekly wage shall be considered to be equivalent to the average weekly wage prevailing in the same or similar employment in the same locality at the time of injury except that, when an employer has agreed to pay a certain hourly wage to such worker, then the hourly wage so agreed upon shall be the hourly wage for such injured worker and his average weekly wage shall be computed by multiplying such hourly wage by the regular number of hours that is permitted each week in accordance with such agreement. . . .” The statute has been amended in respects not relevant to this appeal.

       The respondents appealed and the claimant cross appealed from the decision of the workers’ compensation commission compensation review board to the Appellate Court pursuant to General Statutes § 31-301b, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       Before reaching the merits of the parties’ claims, we must decide, as a jurisdictional matter, whether this appeal is properly before us. “It is axiomatic that appellate review of disputed claims of law and fact ordinarily must await the rendering of a final judgment by the compensation review division. . . . The finality of the decision of the review division is called into question in this case because of the review division’s order of a remand for further administrative proceedings. The test that determines whether such a decision is a final judgment turns on the scope of the proceedings on remand: if such further proceedings are merely ministerial, the decision is an appealable final judgment, but if further proceedings will require the exercise of independent judgment or discretion and the taking of additional evidence, the appeal is premature and must be dismissed.” (Citations omitted.) Szudora v. Fairfield, 214 Conn. 552, 556, 573 A.2d 1 (1990).
      In this case, as in Szudora, “[t]he proceedings contemplated on remand are . . . confined to the arithmetical task of compiling the requisite fiscal data . . . .’’Id., 557. Compliance with the remand order would require the commissioner to undertake only the ministerial task of calculating benefits based on ascertainable and undisputed wage information and would require no exercise of discretion on the part of the commissioner. We therefore conclude that the decision of the review division was a final judgment and that this case is properly before us.

       We note that the board was also correct in its holding that, by the clear mandate of § 31-307b, an employee is not eligible for benefits pursuant to that section if he has received a specific indemnity award for permanent partial disability pursuant to General Statutes § 31-308, even if he meets the other eligibility requirements. See General Statutes (Rev. to 1989) § 31-307b (“no employee eligible for compensation for specific injuries set forth in section 31-308 shall receive compensation under this section”).

       Wc note that in both Rousu and Michna, computation of benefits based on the date of incapacity, rather than the date of injury, resulted in lower benefits to the claimant. The rule in Rousu is neutral in its application and can result in lower benefits, as in those cases, or higher benefits, as the claimant argues for in this case.

        Michna v. Collins Co., supra, 116 Conn. 193, and Stevens v. Raymark Corp./Raybestos Manhattan, supra, 28 Conn. App. 226, also support our interpretation of Rousu. When we affirmed Rousu in Michna, there was no mention of any difficulty in ascertaining the date of injury in an occupational disease case. Rather, in both Michna and Stevens, the party arguing that earnings preceding the date of injury should be used to determine compensation presumed that date to be the last day of work in the position that caused the occupational disease. Both cases, as noted above, were decided on the basis of the holding of Rousu that compensation is to be based on the injured worker’s loss of earning power, best approximated by his earnings preceding his incapacity.