* Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

May 11, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-31049

Summary Calendar

 

SARAH PETERSON SYLVEST

Plaintiff - Appellant

v.

LOUISIANA SUBURBAN PRESS, INC; LOUISIANA STATE NEWSPAPERS 

INC; MOODY COMPANY

Defendants - Appellees

--------------------

Appeal from the United States District Court

for the Middle District of Louisiana, Baton Rouge

3:99-CV-599

--------------------

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Sarah Sylvest appeals from the jury

verdict and entry of judgment in favor of Defendants-Appellees

Louisiana Suburban Press, Inc., Louisiana State Newspapers, Inc.,

and Moody Company. On appeal, Sylvest contends that the district

court committed error in the wording of both the jury

instructions and the jury verdict form. For the reasons that

follow, we dismiss Sylvest’s appeal and affirm the judgment of

the district court. 
No. 04-31049

-2-

Sylvest brought this action against the Defendants, alleging

that they had violated her rights under the Americans with

Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq., and the

Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621,

et seq. The district court granted Defendants’ motion for

summary judgment and dismissed Sylvest’s claims under the ADEA, a

judgment Sylvest does not appeal. The district court, however,

denied Defendants’ motion for summary judgment with respect to

Sylvest’s ADA claims and allowed those claims to proceed to

trial. At trial, the jury rendered a unanimous verdict rejecting

Sylvest’s claims under the ADA, and the district court

subsequently entered judgment for Defendants. Thereafter,

Sylvest filed a notice of appeal, but failed to include the trial

transcript in the record on appeal.

Sylvest's failure to include the trial transcript in the

record on appeal precludes us from reviewing her appeal on the

merits. Under the Federal Rules of Appellate Procedure, an

appellant who “intends to urge on appeal that a finding or

conclusion is unsupported by the evidence or is contrary to the

evidence . . . must include in the record a transcript of all

evidence relevant to that finding or conclusion.” Fed. R. App. P.

10(b)(2). Failure to include a transcript in the record is

grounds for dismissal; however, the decision whether to dismiss

an appeal due to lack of a transcript is within our discretion.
No. 04-31049

-3-

See, e.g., RecoverEdge L.P. v. Pentecost, 44 F.3d 1284, 1289 (5th

Cir. 1995); Coats v. Pierre, 890 F.2d 728, 731 (5th Cir. 1989). 

In the instant case, a transcript is required because

Sylvest challenges the jury instructions, which were delivered

orally by the district court and recorded only by the court

reporter. A transcript also is required to determine whether

Sylvest’s objections to the jury verdict form were properly

lodged in the district court. Absent a transcript, there is no

record of how the jury instructions were actually worded or

whether Sylvest objected at trial to the jury verdict form,

thereby rendering appellate review of the issues raised by

Sylvest impossible. Accordingly, we dismiss Sylvest’s appeal and

affirm the judgment of the district court.