Jan72026
Partition Action Q&A Series

If the court’s calendar is full for the dates we want, what are the next available options and how do we lock in a hearing date? – North Carolina

Short Answer

In North Carolina partition cases, the next available hearing options depend on whether the matter is set before the Clerk of Superior Court (common for many partition steps) or a Superior Court judge, and on the county’s local calendaring practices. When preferred dates are full, the usual alternatives are (1) taking the next open slot offered by the clerk’s office or trial court coordinator, (2) setting the matter in a later session of court, or (3) requesting a continuance or rescheduling by consent if a date is already assigned. A hearing date is “locked in” by getting it assigned through the proper scheduling office and then serving a written Notice of Hearing (and any required motion/petition materials) on all parties who have been served in the case.

Understanding the Problem

In a North Carolina partition action, a party may need a hearing date to ask the court to order partition by sale. If the court’s calendar is full on the preferred dates, the practical question becomes: what other hearing settings are available in that county, and what steps must be completed so the hearing is officially placed on the calendar and the other side receives proper notice.

Apply the Law

Partition in North Carolina is handled as a “special proceeding,” and many steps are heard by the Clerk of Superior Court, with some matters potentially going to a Superior Court judge depending on what is being requested and whether issues are contested. A party generally cannot “self-set” a hearing just by picking a date; the date must be assigned through the correct court scheduling channel (often the clerk’s special proceedings office or a trial court coordinator), and then the moving party must give proper written notice of the hearing to the other parties who have been served.

Key Requirements

  • Correct forum and calendar: The hearing must be placed on the correct calendar (Clerk of Superior Court special proceedings calendar versus a Superior Court civil motions/session calendar), which affects what dates and times are available.
  • Proper notice and service: Even if the respondent has not filed a response, the moving party generally still must give notice of the hearing to parties who have been served, using a written Notice of Hearing and any required supporting filings.
  • Ready-to-hear filing package: The court typically expects the request (petition/motion) and supporting materials to be filed and organized so the clerk or judge can enter an order (for example, an order addressing whether a sale is appropriate and what procedure will be used).

What the Statutes Say

Analysis

Apply the Rule to the Facts: The case involves a tract of land and a request for partition by sale, and the respondent was served but did not file a response by the deadline. Even in an uncontested posture, the hearing still must be placed on the correct calendar (often through the Clerk of Superior Court for special proceedings) and noticed properly to parties who were served. If the preferred dates are full, the next available options usually come from the scheduling office’s next open slots, the next civil session, or a later special proceedings calendar date that can accommodate travel and time-of-day preferences.

Process & Timing

  1. Who files: The party seeking the order for partition by sale (through counsel). Where: The Clerk of Superior Court in the county where the partition special proceeding is pending (and, if the matter is set before a judge, through the county’s Superior Court civil calendaring process). What: A written request to calendar the matter (county-specific), plus a filed Notice of Hearing that matches the assigned date/time and identifies what will be heard. When: After the respondent’s response deadline has passed, the moving party can typically request a hearing date; the actual setting depends on the next open slot offered by the clerk’s office or trial court coordinator.
  2. Get multiple date/time options: Call the clerk’s special proceedings office (or the trial court coordinator if it is a judge-set matter) and ask for the next several available settings, including later-afternoon options if the county offers them. Some counties calendar by “sessions” rather than specific times, and some assign times only shortly before the hearing.
  3. Lock it in with notice: Once the office assigns the date (and time if available), file the Notice of Hearing and serve it on all parties who have been served in the case. Keep proof of service in the file. If the hearing will address partition by sale, ensure the supporting materials are filed in time for the clerk or judge to review and to make the findings required for a sale order.

Exceptions & Pitfalls

  • Clerk vs. judge setting: A common mistake is trying to calendar a special proceeding hearing through the wrong office. In many counties, partition matters are set through the Clerk of Superior Court’s special proceedings process, not the general civil motions calendar.
  • No response does not mean no notice: Another common mistake is skipping a formal Notice of Hearing because the respondent is “in default.” Courts still expect proper notice to parties who were served, especially when the requested relief affects title to real property.
  • Sale timing constraints: If the goal is to move from an order to an actual public sale, statutory notice requirements for the sale itself can create a minimum lead time that affects realistic scheduling after the order is entered.

Conclusion

When the preferred dates are full in a North Carolina partition action, the next available options usually come from the next open settings offered by the Clerk of Superior Court (often for special proceedings) or the next available Superior Court civil session if a judge must hear the matter. A hearing date is locked in by getting the date assigned through the correct scheduling office and then filing and serving a written Notice of Hearing for that assigned setting. The most important next step is to request the next several available settings from the proper office and promptly serve notice once a date is assigned.

Talk to a Partition Action Attorney

If a partition by sale hearing needs to be scheduled and the court’s calendar is tight, our firm has experienced attorneys who can help identify the right forum, request multiple available settings, and make sure notice and filing steps are handled correctly. 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.

Category: Partition Action Q&A Series

Author: Pierce Law

Pierce Law Group is a North Carolina law firm focused on probate administration, real estate partition matters, and surplus funds claims across North Carolina. We know these situations often come with stress, family dynamics, and time-sensitive decisions—so we prioritize clear communication, steady guidance, and a practical plan from day one. Our goal is to make a complicated process feel manageable, while protecting what matters most to you.