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Bamberg South Carolina Personal Injury (1)
Bamberg South Carolina Personal Injury law related articles: Car accidents, Slip and fall, Hurt on the job... View items...


       Whether in business or in personal life, contracts are important. For many, giving one's word is a bond they will never break. If they tell someone they will do something, they will stick to it as an ethical obligation without the threat of legal enforcement.  Unfortunately, not all those in life have the same kind of passion about keeping their word. Particularly in business contracts, but also in personal life, having the ability to legally enforce a contract is critical. That's what this article is all about.
       The courts consider any accepted "offer" to be a legally binding contract.  The key elements are that one party communicated an offer to another party, and the other party accepted the offer at the terms given. That's it. For many contracts, parties are allowed to testify in court about what was communicated as an offer and what was communicated as they acceptance.  A party can bring an action in court and have the ability to testify as to what was said between parties in creating the contract.  As long as a "quid pro quo" existed (each party promised something of value to the other through the offer/acceptance) a party can be held to the contract and damages flowing from a breach of that contract.
      Parties attempting to enforce a contract or seek damages for a breach of contract should understand the challenges of bringing an action based on an oral contract. Though the courts will recognize the legal sufficiency of an oral offer and acceptance to form a contract, the other party can be expected to dispute those communications. If they didn't dispute the communications, parties likely wouldn't seek the court for redress.  Therefore, it's quite important to analyze the extrinsic evidence of the oral contract.  Witnesses can be a great source of evidence, particularly if the witness is not closely aligned with the party bringing the action.  A family member or close friend will be considered a biased source of testimony, for example.  Additionally, the evidence of partial performance of the contract can be great evidence the parties agreed.  Sometimes, just the course of dealing between the parties in routine contracts can help establish the existence of an enforceable contract.
       Some contracts are required to be in writing in order to bring evidence of the contract before the courts by the "Statute of Frauds".  Contracts associated with marriage, contracts dealing with real estate (land), contracts that cannot possibly be completed within one year are examples of contracts of which the court requires some writing for evidence of the contract (oral evidence is not enough). The writing used as evidence must be signed by the party against whom the action is being brought. This can be any type of writing, including even notes on a scratch piece of paper describing the contract and signed by at least the party who will be the Defendant in court. By the "Parole Evidence Rule" if parties later make an oral agreement about the contract that would contradict a term in writing, it cannot be used to help fill in any questions about the contract.  However, other non-written evidence can be used to help better explain the terms of the contract as long as the evidence does not contradict the terms of the parties in writing.   
       In Personal Injury cases, many times parties will come to a settlement. That settlement will include settlement terms and the person bringing the case releasing the liable party from future threat of a lawsuit by the party bringing the suit.  In settlements, though the agreement is a contract and "could" be oral, lawyers associated with the parties are required to obtain signatures before disbursing proceeds.  In dealings with lawyers, certain contracts are required by attorney ethics rules to be in writing.  For example, for a lawyer to take a case on "contingency" (lawyer is not paid fees during the case, but collects a percentage usually 33%), he must have the client's signature in writing to work on that basis.  He must also obtain the client's signature agreement to the disbursement of funds by their agreement.
       There are many, many other laws and evidence rules associated with contracts, but the key take-away should be the importance of getting contracts in writing, ensuring the writing is clear about the main terms of the contract, and considering legal representation for substantial contracts that involve sophisticated terms and have the potential for critical loss. 



Critical Evidence Rule For Personal Injury Claim

          When you are in an accident involving personal injury, events move quickly during the incident and the immediate aftermath.  After a collision involving two vehicles, drivers and passengers in both vehicles are usually in some state of confusion. As I learned during firefights in Afghanistan, events involving potential death causes a substantial adrenaline spike with multiple physiological effects. The immediate aftermath of an accident can be confusing and emotions can run wild. It's important to learn a key evidence rule now, so that when an accident occurs you will make a wise decision about what is said in a confusing and sometimes chaotic environment.
        The first, and arguably most important, evidence rule to be aware is an exception: to the general rule against the admission of hearsay in court:  A party admission is admissible in court despite being "hearsay".  This means that if a party makes an admission to being at fault in an accident, anyone who heard the party can testify to that admission.  It doesn't have to be a direct admission like "I caused this accident".  It would be something more indirect like "I didn't see the stop sign".  Anything that can be reasonably interpreted as an admission.  Another hearsay exception is a party statement against interest.  When a party communicates a statement that goes against the interest of the party, this is allowed in court as another exception to the general hearsay rule.  Saying "I didn't realize the speed limit changed" is against interest (and/or considered an admission).  Therefore, parties must be careful after an accident not to say something admitting fault or going against the interest of the party.
        A reason it's important to understand this rule is that a party can destroy a defense or legitimate claim against the other party by saying the wrong things after an accident. In dealing with insurance carriers, a party admission generally prevents the company from settling.  It can also cause the party's own carrier to settle the claim in favor of the other party.  In the immediate aftermath of an accident, one party might be confused, and not understand what happened and "think" he is at fault.  When all the facts come out later, that party may have had less liability than the other party. As South Carolina is a modified "comparative fault" state, a party can bring a lawsuit as long as that party is not beyond 50% liable for the accident.  However, if the party makes an admission of liability, that admission will greatly harm any future defense or claim against the other party.
       This does not mean that a party cannot express sympathy for any injuries of the other party, and definitely doesn't mean a party cannot seek to help the other party.  It is just important to be careful about what is said around others after an accident, and understand that accidents are complex in the area of liability.  Just provide the facts of what happened, and let the facts speak for themselves.          


      Workers Compensation was developed as a legal protection for both workers and employers.  Before worker's compensation, when an employee was injured he could only attain compensation for his personal injury if he was able to bring suit in court against his employer. That is unless the employer voluntarily decided to take care of the worker's injuries and associated damages. At that time, the employer could be sued for extraordinary and even bankruptcy level amounts, as damages could go beyond medical bills and lost wages into pain and suffering and punitive damages.  By state law, Workers Compensation Insurance is required of all employers employing four or more individuals, and the rules are governed by the state Workers Compensation Commission.  Within Workers Comp rules, the liability of either the employer or employee is not a factor in coverage and amount of compensation, but compensation is limited to medical coverage and a certain amount of lost wages.  For the worker, this can be a problem when the injury is substantial and severe and involves a great deal of pain and suffering and other non-medical or wage-related damages. A third party claim can help remedy that problem.
      A third party claim in a Workers Compensation case is when a party separate from the employer (including employer's corporation and agents) bears liability in an accident.  If Workers Compensation is involved, the accident would have had to occur within the scope of an employee's work and involve the employer's workers comp insurance.  In some cases, a third party can be liable, and that party(s) is not protected from a lawsuit the way an employer is with worker's compensation.  For example, if someone is hurt by faulty equipment owned by a third party (not the employer or his corporations/agents) while the employee is working within the scope of his work for the employer, he can make a Workers Compensation claim and then a third party claim against the liable third party.  This sometimes happens when a worker is struck by another vehicle while driving under the scope of employment.
      In order to make a third party claim in a worker's comp scenario, the worker must first resolve the worker's comp claim first.  The worker's comp claim must be resolved before reaching a settlement or bringing a suit against the third party. Additionally, the worker's compensation insurer will normally have some rights to recoupment in the event of a third party settlement or jury award.  The key difference between the two claims is the third party liability claim can be substantially more than the worker's comp claim, and better compensate the employee in bad accidents.
     After a work-related accident, always analyze to see if you have a third party claim.  It is worth the effort.


      When someone hurts you in an auto wreck and you require medical attention, bills can be substantial.  Just the bill for being transported from the scene of the accident to the emergency room will usually run at least $500.  The emergency room bill for solely evaluation after a wreck can run $4000 and higher.  When advanced diagnostic imaging is required, such as a CAT scan, the bill can run over $15,000.00.  If treatment is required, particularly an injury such as a broken bone, the bills can be quadruple the amount of the Emergency Room evaluation. An injury requiring ICU and/or surgery can run into the six figures. It is important to know what insurance coverage is available to help cover medical bills and compensate for damages like pain and suffering.
      In South Carolina, all drivers are required to have insurance coverage for anyone they might hurt up to at least $25,000.00 (usually termed "liability" coverage).  Drivers are not legally required to cover themselves, though the majority of drivers to have insurance for their own potential injuries not associated with another driver (usually called "collision" coverage). In addition to that coverage, most drivers will choose to cover themselves with "uninsured motorist" (UM) coverage, in case the other driver does not have insurance coverage.  along with UM coverage, most will also have associated "underinsured Motorist" (UIM) coverage, in case the amount of damages exceeds the other drivers liability limits.
      When the other driver, who is liable for hurting you, is uninsured, your own UM coverage will cover you up to the amount of the UM coverage.  That will be up to your own liability coverage, so if you choose "minimum limits" of $25,000, that is the amount of coverage available for UM.  Additionally, if the other liable driver is underinsured for the damages he caused, your own UIM coverage will exceed his liability coverage up to those limits.  Those limits will be up to what you have for liability coverage.
      What becomes important to understand is when damages exceed both liability and UIM coverage.  In South Carolina, policy owners are then allowed to "stack" policies for their other vehicles insured by that policy.  Therefore, if the hurt driver has 3 vehicles under the policy, with UIM limits of $25,000, he will have a total of $75,000 in UIM coverage in addition to the other driver's limits.
      One important coverage available to someone hurt in a wreck is "resident relative" coverage.  If someone is living with an immediate family member who has insurance coverage at the time of the accident, the hurt individual will likely be covered under the covered family member policy.  This is important for those who were uninsured at the time they were hurt and the liable driver is also uninsured.
      If the at fault driver is uninsured, the hurt party may still sue the driver over the damages caused in the accident.  The at fault driver could be found liable by the court and/or jury and have a judgment rendered.  At that point, they must pay the judgment, but usually a driver without insurance is also unable to personally pay a judgment.  That would leave the injured party stuck with the damages, and the reason for uninsured motorist coverage. 
      Always look for all available ways to cover injuries.


You have decided to start your own business, and want to do the right things for it from the beginning.  You know that most businesses fail before the five year mark, and know you must make the best financial and legal decisions possible.  You know lawyers aren't cheap, and must make the decision of where the initial seed money is to be spent.  So many other early expenses:  Rent or mortgage payments, new office furniture, computers, etc. staffing costs, insurance.  The question is what value a lawyer brings to the table of a new business when hard decisions must be made about expenses.  In this article, I hope to help you make that decision.
       The first priority of starting a new business in South Carolina should be incorporating that new business with the state secretary of state.  In South Carolina, that process can be completed on-line, including payment of the filing fee by credit card (filing fee for a limited liability company in SC is currently $110).  This process is simple enough that a lawyer would not have to do it for the business, but for a small flat fee a lawyer would be worth getting it done correctly.  In setting up a business (either corporation or limited liability company) with multiple owners/partners, it is worth it to hire a lawyer to draft an operating agreement between partners.  This is important to be done correctly, as it will govern relations between the owners:  Who has what percentage of ownership, and draws what percentage of the profits after expenses?  What is the agreement for owners leaving the business?  What is the agreement of owners about management of the business?  What about non-disclosure agreements?  These are just a few of the major considerations for the operating agreement, and without a lawyer partners could end up in litigation.
      Once the business is incorporated and any necessary operating agreement drafted, the next step is ensuring the other administrative details are performed correctly.  For example, it is important to request a Tax ID number (Employer Identification Number) and a corporate bank account separate from any personal bank accounts.  This can also be performed by non-lawyer owners, but for a small flat fee a lawyer would ensure it is done correctly. For many types of businesses, having the right insurance is either required to maintain a license, or a "de facto" requirement to ensure the business is protected. This is also something owners could acquire, and review the terms of the insurance.
       If the business was properly incorporated, it is then important to follow appropriate corporate formalities.  After incorporation, business owners in South Carolina have a legal "shield" from most types of personal liability. Any lawsuits based on activities associated with the business (for example, an injury of a third party by the negligence of an employee, or a "slip and fall" on the property of the corporation) must be brought against the corporation as an entity, and not the individual owners.  The insurance is then for covering any potential claims against the corporation.  A lawyer can help ensure the owners are fully protected by ensuring corporate formalities are met. In South Carolina, under the concept of "piercing the corporate veil", owners could be held personally liable for claims associated with the corporation.  If the corporation is shown to be a sham, and not run as a corporation, the owners could face that risk.  This is again why a lawyer could be helpful with the corporation.
      When the business is off and running, having an attorney on retainer can be very helpful to staying out of trouble with potential "legal minefields".  Decisions about hiring and firing, following regulatory requirements like eVerify, the list goes on and on.  In our firm, we offer what I believe to be a good deal for the small business to stay out of trouble at a low cost.  We ask that the small business keep a moderate amount of retainer in escrow, but we do not charge a recurring fee.  We only charge the retainer if we are requested to perform legal work.  For example, if the business plans to fire an employee in a unique situation, they could call our office to ask about the situation and how to proceed without incurred legal risk. This type of arrangement is something most small businesses can afford, and worth it to save the resources and stress of legal problems.



        For many small businesses in South Carolina, hiring a lawyer for all contracts with other parties can be cost-prohibitive.  Certainly, for contracts involving substantial amounts of money or with substantial effects on the business, it is always best to retain an attorney.  The following are some thoughts about contracting without a lawyer, and financial considerations if seeking a lawyer.


  1. Understand that oral contracts are still legally enforceable.  The contract is made when one party has made an offer involving consideration, and another party has accepted the offer with consideration.  Consideration just means the there has been a promise of a quid pro quo (Latin for “this for that”).  In other words, as a promise to give another party something when the other party is providing nothing in return is not enforceable.  A writing is always recommended, as it provides evidence to a court of the contract.  It also helps define the contract and helps eliminate misunderstandings between parties.  Understand that for some contracts the party must have a contract signed by the other party for the courts to consider the evidence of a contract. This is called the “Statute of Frauds”.  It doesn’t mean a contract didn’t occur, but that the court cannot rely on oral evidence and must have a writing signed by the party against whom the suit is brought.  This includes contracts dealing with land, marriage, high dollar amounts, or contracts that cannot possibly be completed within a year.  When it doubt, seek a lawyer, but understand that smaller contracts made orally are still enforceable contracts in court.


  1. When drafting a written contract, it is best to be as precise as possible in what is being exchanged.  This is particularly the case for work projects.  By the “Parole Evidence Rule”, courts cannot consider any evidence of an oral agreement that contradicts what is in a written contract.  Therefore, it’s important to understand that when a contract is made in writing a party cannot rely on oral agreements outside the writing that contradict in any way.  This does not prevent evidence of agreements that do not contradict the writing.  Additionally, if parties did not come to an agreement about a particular aspect of the contract, they can look to industry standards and reasonableness in determining what should be part of the contract.  Again, a detailed and precise written contract prevents the potential litigation and questions of what the court might decision about ancillary issues.


  1. Though a writing must only be signed by parties, it is good practice to have a notary witness and notarize the contract.  In some cases, like contracts dealing with Real Estate, marriage, and long term projects, there might be a witness and/or notary requirement.  Ensure to at least consult with an attorney about those questions.


  1. If one party retains an attorney, that attorney can be used by both parties to draft the help execute a contract.  It is preferable for both parties to have their separate counsel, but financial considerations may deter this course.  It is important to remember that the attorney will be working in the interest of the party who retained him, though he has the duty of truthfulness with the other party.  The adverse party should sign a waiver acknowledging he understands who has retained the attorney and the attorney’s duties.  Both parties could retain an attorney to solely draft the contract to be executed by the parties.  In that event, the parties would have to waive conflict, and the attorney could not represent one party against another.  Again, recommended for both parties to retain counsel.

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         Two of the most important decisions in seeking to redress a civil wrong are whether or not to bring a formal lawsuit and where to bring the lawsuit.  The first question is a very personal one.  It is normally made after some attempt to reach a resolution between parties before filing.  The other side will not make what you consider a reasonable offer to resolve the matter, the next step is filing suit.  The decision of where to bring the suit is normally one of finding the most advantageous (for your side) place to file and eventually go before a jury.  This is what I hope to enlighten with the various factors to consider.
         Determining which state to bring suit, assuming it is not a Federal matter, will normally come down to the two usual grounds for Civil jurisdiction:  The place the incident occurred or the state of residence of the Defendant.  In South Carolina, the venue (or county) rules use the same grounds, place of the incidence or county residence of the Defendant.  In sticking to venue, it's important to understand that different venues provide different expectations for results.  Some venues are more Liberal, and result in juries which historically give more and higher jury verdicts to the person bringing the suit.  Some venues are more conservative, and juries give fewer and lesser awards to those bringing cases.  For example, in South Carolina it is generally known among attorneys that Greenville County is considered more conservative and Hampton County is considered more Liberal.  Therefore, it would be less advantageous to bring a suit in Greenville as a general rule.
        Another factor in determining venue can be deciding whether or not it is best to have the case heard by a jury in Federal Court.  In the event of parties from different states and a matter beyond $75,000.00 a party can bring a case to Federal Court or have a case removed from state to Federal Court.  This may be advantageous for a party defending a lawsuit and stuck in a Liberal venue. The Federal jury will not be residents solely of the Liberal venue.  This is something most lawyers can help with understanding based on the differing situation.  In some instances, the case may have to go before a Federal Court due to being a Federal jurisdictional matter.
         Many times, parties have little discretion in the venue.  If the accident occurred in the same county as the Defendant's residence (state matter) then the case would have to be brought in the one venue.  If there are multiple parties involved, venue can be brought in the residence of the first Defendant sued, even though other parties can be brought in to that jurisdiction even though the incident occurred elsewhere.  Sometimes, the "place" the incident (wrong) occurred can be open to question.  For example, with a breach of contract between parties who contracted from different venues (either over the internet or mailing contract back and forth), this might open several potential venues.  In some cases, parties can seek a change of venue based on some kind of argument that justice cannot be served in that venue for a party (or parties).  For example, in cases involving pre-trial publicity that could rise to a level to request a change of venue.  
         The key thing after venue is settled is winning the case, and juries are always open to good advocacy.  Just keep in mind the basics of determining where to bring a suit.



           In the progress of a civil action, one of the most important events (during or sometimes before actual litigation) is mediation.  This is because only a small number of civil cases go all the way to a trial, whether by jury or bench (judge).  The bottom line is that parties usually reach a settlement before cases go before a jury, and the primary means of reaching a settlement is by mediation.  Because settlement helps keep the court system from being clogged with cases, most venues require parties attempt mediation before they can go to trial.  This is always something to ask about in litigation.
          Mediation is confidential, meaning the parties can open up with information to bring settlement that cannot be disclosed outside of settlement.  The mediator is within the confidentiality agreement, and cannot disclose information from one party to another unless the party providing the information gives authority to the mediator.  Unlike an arbitration, in which the arbitrator is authorized to make a binding decision after parties present their evidence and arguments, a mediator cannot make a ruling.  The mediator's role is to attempt to bring a resolution between parties which both parties consent.
           The dynamics of mediation can vary widely.  In a court ordered mediation, parties will usually agree upon a certified mediator, who will be paid by the parties to mediate the case.  The location of mediation can be anywhere the parties consent, whether in the mediator's office, one of the lawyers' offices or elsewhere.  The mediator will usually speak to the parties and attorneys first to explain the process and issues like confidentiality.  Usually, the parties will then split up into separate rooms with the mediator going back and forth with offers and counter-offers.
           A benefit to an experienced, authoritative mediator is in helping predict what would happen at trial.  For example, in a divorce mediation, a former family court judge mediator can tell the parties what the judge has experienced with a certain ruling with a certain fact scenario.  This allows a party to make the best decision by knowing what would likely happen at trial.  Mediation is not always successful, but many times a settlement still occurs after mediation.  Parties then think about what they have learned in mediation and know the offers on the table.  In that event, the mediation was still "successful" despite a seeming failure.
          Particularly when a great deal of money is riding on a case, it is always best for parties to consider a mediation, even if parties appear far apart with positions.  Costs of trial are saved, and settlement brings an almost immediate transfer of money.  Parties aren't waiting for post-trial motions and appeals to finish.  Most importantly, parties are in control of the outcome, which is not the case with a judge and jury.  

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        Landlord/Tenant laws in South Carolina have come a long way in the past 50 years, and it's important for Landlords and Tenants to know some of the basic rights when contracting for this relationship.  
         First, though landlord/tenant leases (or sub-leases) are not required to be in writing, a written contract generally provides rock solid evidence of what the parties intended.  By the "Parole Evidence Rule" the writing signed by the parties will supersede oral agreements that might contradict the written agreement made before the written contract.  Any further agreements should be signed as either amendments or new contracts.     
         If there is no agreement between parties as to the length of the lease, the court will presume a month to month lease.  This kind of lease will continue until at least one party decides to end the lease and provides one month notice of the end of the lease.  Of course, a breach of contract like failure to pay rent can also end the lease (though the Landlord must petition the court to eject the breaching tenant, and a tenant can bring suit against a landlord failing to make repairs to the property and even terminate the lease for such failure).  The month to month lease provides flexibility for both parties, but can leave little security for the tenant staying beyond one month if the landlord so decides.
          Generally, leases will run either every six months or annually.  Similar to the month to month leases, a party wishing to end the lease must give at least a 30 day notice before the end of the lease that the lease is to end.  If the parties do not agree to another longer term lease, the court will presume the parties have moved to a month to month lease with the same requirements explained above. Similar to the month to month lease, parties can remedy breaches by the other party by termination of the lease and in some cases withholding rent due to non-repairs.
           Many years ago, parties could agree to contract for the tenant living in an unreasonably unlivable property.  As long as the landlord and tenant agreed to the rent, they were free to contract.  However, the law requires that landlords provide a reasonable level of "habitability", called the "implied warranty of habitability".  Therefore, regardless of what's in the contract between the parties, the landlord cannot fail to present and maintain a reasonable standard for the property.  Black mold, filthy conditions, structural unsoundness, etc. can be deemed to be a breach by the landlord and the tenant can bring suit and potentially terminate the tenancy. 
(similar to the way "damages" is the last element of personal injury in determining the amount to redress the harm).
           If a party were to terminate the lease prior to the end of the term, the other party can sue.  The penalties against the landlord can be substantial, and that includes for constructive termination (making conditions such that the tenant reasonably cannot continue).  The penalties against a tenant are also substantial and can involve two times the damages caused or up to months of the rental amount and attorney fees.  The landlord must make reasonable attempts to re-lease the property (and upon re-leasing cannot continue charging rent), but can charge rent against the tenant during the remainder of term of lease.  

          When purchasing or selling real estate, it's important to hire a real estate agent to help with the marketing and sale of your property.  Real estate agents must be licensed, and should know the processes of listing homes and preparing homes for sale.  Additionally, are a huge help to buyers in showing the type of home being sought, and helping through the buying processes.  That aside, it's important for home buyers and home sellers to understand and check on some critical details in the process of buying or selling real property.
         Arguably most important thing to check as the buyer or seller is the actual legal boundaries of the property.  The deed to the real property will offer a description of the boundaries, and many Deeds reference a plat of the land. Whatever has been registered as the Deed (and associated plat) is the legal boundaries of the property.  In most counties in South Carolina, the general public can find the information on line at the respective county registry of Deeds website.  They can provide this information to a surveyor to check the land.  Critically, this actual lines of property may not necessarily coincide with fences and other physical boundary markers. Even the Tax Map boundaries may be off. The actual survey, based on the legal Deed/plat, will give ground truth.  
        As an attorney working various cases (personal injury, family law, estates, etc.), the most shocking cases to clients come with the transfer of expensive real property without a survey based on the legal Deed.  Homes worth over a million dollars of which multiple owners have purchased and sold with incorrect physical boundaries (yard fences, etc.).  If the buyers catch the mistake within the statute of limitations (3 years for most torts, including breach of contract or fraudulent misrepresentation between private entities), the buyers may sue the prior owners who sold the property.  It may seem unfair to the prior owners, and they had not surveyed the property, but they may be "stuck holding the bag" of having advertised real property as consisting of property beyond the legal physical limits:  A yard that stretches onto common area property or adjacent property, for example.
       The best way to prevent this nightmare is to have all property surveyed prior to purchasing it.  Do not assume that seemingly "ancient" fences prove legal lines without verification.  Do not be stuck "holding the bag" when someone decides to conduct a survey.  Be smart.

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