How can I obtain a copy of a lost settlement agreement for a partition case? – North Carolina

Short Answer

In North Carolina, first check the court’s Special Proceedings (SP) file with the Clerk of Superior Court; if the settlement was turned into a consent order or filed, you can get a copy there. If it was a mediated settlement not filed with the court, request a copy from your prior attorney, opposing counsel, the other co-owners, or the mediator. Mediation communications are confidential, but a signed settlement can be disclosed to enforce or rescind it. If the original is lost, North Carolina’s evidence rules allow other proof of its contents.

Understanding the Problem

You’re asking: in North Carolina, how do I get a copy of a written settlement from a partition special proceeding when I can’t find my copy? The focus is on locating and obtaining the actual signed agreement or an official court order that reflects it. One salient fact: you discussed selling all co-owned properties but hoped to keep one.

Apply the Law

Partition cases are usually filed as Special Proceedings in the Clerk of Superior Court. If a settlement was adopted in a consent order or entered as a memorandum of judgment, it should be in the SP court file, which is a public record. Mediated settlements are enforceable when reduced to writing and signed. Mediation communications are confidential, but the signed agreement itself can be produced to enforce or rescind it. If the original writing is lost, North Carolina’s rules of evidence permit other evidence of its contents. When a partition case is still pending, you can also use discovery or subpoenas to obtain the document.

Key Requirements

• Check the SP court file: If the settlement became a consent order/judgment or was filed, get a copy from the Clerk of Superior Court.
• Mediated settlement must be written and signed: An enforceable mediation agreement exists only if signed; look to your attorney, opposing counsel, or mediator for a copy.
• Mediation confidentiality has exceptions: The signed agreement can be disclosed for enforcement or rescission, or with consent or a court order.
• Use formal process if needed: If the case is pending, serve a document request or subpoena; the Rules of Civil Procedure apply in special proceedings.
• Lost original: If no original is available, you may prove its contents with secondary evidence under the Rules of Evidence.

What the Statutes Say

• North Carolina Gen. Stat. § 7A-38.1 (Mediated settlement in superior court) – Establishes mediated settlement conferences and program requirements.
• North Carolina Gen. Stat. § 7A-38.3B (Mediation in matters before the clerk) – Authorizes and governs mediation in clerk special proceedings, including confidentiality exceptions.
• North Carolina Gen. Stat. § 8C-1, Rule 1004 (Other evidence of contents) – Allows proof of a writing’s contents when the original is lost.
• North Carolina Gen. Stat. § 1-393 (Rules of Civil Procedure apply) – Applies civil procedure to special proceedings unless a statute provides otherwise.

Analysis

Apply the Rule to the Facts: Start at the Clerk of Superior Court and request the Special Proceedings (SP) case file for your partition matter; if the settlement was entered as a consent order or memorandum of judgment, you can obtain a copy there. If the settlement was only a mediated agreement not filed, ask your prior attorney, opposing counsel, co-owners, or the mediator for the signed agreement; confidentiality rules allow production of the signed agreement for enforcement or rescission. If no original is available, you may proceed with secondary evidence of the agreement’s contents.

Process & Timing

1. Who files: You or your attorney. Where: Clerk of Superior Court (Special Proceedings Division) in the county where the partition case is filed. What: Request the SP file and ask for copies; look for a Consent Order/Judgment or a filed agreement. If mediated, the signed agreement may be on AOC-DRC-15/16; the mediator’s AOC-G-303 “Report of Mediator” may also appear in the file. When: If the case settled, closing documents are typically filed soon after mediation (often within 10 days in clerk matters or 30 days in superior court by program rule).
2. If not in the court file: Send written requests to your former attorney and opposing counsel for the signed settlement; if needed, ask the mediator for a copy (they may require consent of all parties or a court order due to confidentiality).
3. If the case is pending and informal requests fail: Serve a Rule 34 document request or a Rule 45 subpoena; if necessary, move the court to compel production. If the original is lost, be prepared to offer other reliable evidence of the agreement’s contents under Rule 1004.

Exceptions & Pitfalls

• If no one ever signed a written agreement, there may be no enforceable mediated settlement to produce.
• Mediation confidentiality protects communications; request only the signed agreement or seek a court order referencing enforcement/rescission to avoid delays.
• If the agreement was never converted to a consent order, the court file may not contain it; broaden your requests to attorneys, parties, and the mediator.
• County practices vary; some clerks keep SP papers in separate volumes, so ask for the full SP file by number.

Talk to a Partition Action Attorney

If you’re dealing with a lost settlement agreement in a North Carolina partition case, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at [919-341-7055].

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.