Dillard, Presiding Judge. Jessica Alred appeals from the trial court’s dismissal of her suit for legal malpractice against the Georgia Public Defender Council (“GPDC”), arguing the trial court erred in doing so when it concluded that her tort claims were barred by sovereign immunity. For the reasons set forth infra, we reverse the trial court’s dismissal and remand this case for further proceedings consistent with this opinion. A motion to dismiss asserting sovereign immunity is “based upon the trial court’s lack of subject-matter jurisdiction, rather than the merits of the plaintiff’s claim.”[1] Sovereign immunity is not an affirmative defense, going to the merits of the case, but “raises the issue of the trial court’s subject-matter jurisdiction to try the case.”[2] Importantly, a waiver of sovereign immunity “must be established by the party seeking to benefit from that waiver; thus, the plaintiffs [have] the burden of establishing waiver of sovereign immunity.”[3] As a result, when reviewing a trial court’s ruling on a motion to dismiss on such a basis, we do so de novo while sustaining factual findings if they are supported by any evidence.[4] At the outset, we acknowledge that whether GPDC may be sued for professional negligence and legal malpractice appears to be an issue of first impression in Georgia[5]—although other states have tackled similar questions.[6] But here, both parties agree that the Georgia Tort Claims Act waives immunity for GPDC subject only to the delineated exceptions.[7] Indeed, GPDC admits that it is a government entity as defined in the GTCA and can be held liable under that statute, subject to that Act’s exceptions. And GPDC does not claim any other statute provides it with immunity for the relevant claims.[8] So, for purposes of this appeal, we accept GPDC’s concessions and address only the issues raised by the parties in their briefs. With the foregoing in mind, the record shows that on March 17, 2020, Alred filed a complaint for damages against GPDC. The basis for this suit began on July 22, 2016, when she was charged in Dougherty County Superior Court with two counts of financial transaction card fraud, a felony. Alred appeared pro se at her October 2016 arraignment and, inter alia, provided both the court and district attorney with her current mailing address on the “Waiver of Arraignment.” Thereafter, Alred appeared pro se at a November 7, 2016 Faretta hearing,[9] and at that time, completed an application to be represented by the Dougherty County Public Defender’s office. On the application, she again listed her mailing address. And that same day, she was interviewed, filled out a client-information sheet, and agreed to pay a $50 application fee for the public defender office’s services. Nevertheless, Alred was never provided notice of being appointed an attorney. Alred’s case was subsequently placed on a trial calender and called on or about June 28, 2017; but the court clerk’s office used a previous address for Alred on the notice for her to appear, and the notice was later returned as undeliverable. At that calendar call, neither Alred nor any attorney from the Dougherty County Public Defender’s Office appeared on her behalf, resulting in a bench warrant and Alred’s eventual arrest. Then, on December 21, 2017, Alred wrote a letter “to whom it may concern” at the Dougherty County Public Defender’s Office regarding her incarceration and lack of counsel. She requested that an attorney come see her as soon as possible. It was not until January 10, 2018, that Carmen Love, a public defender, filed an entry of appearance on Alred’s behalf and a motion for bond, and attended a hearing on the motion on January 29, 2018. But this motion was denied based upon Alred’s failure to appear at the earlier calendar call, leading the trial court to consider her a flight risk. Alred alleged that due to a failure to look into her file, Love did not realize Alred never received the notice to appear at the calendar call because it was mailed to an old address. And indeed, at the time of the bond hearing, Love had never met with or even spoken to Alred, and only did so once on February 21, 2018. Thereafter, Alred was released from incarceration upon hiring substitute counsel, who established the reason for Love’s failure to appear at the calendar call. Based upon the foregoing facts, Alred made claims and sought damages against Love and her employer for professional negligence, negligent supervision, and breach of contract.[10] She attached to her complaint an affidavit from James Finkelstein, an attorney, who claimed that after concluding that Love “had effectively abandoned her client,” he filed an entry of appearance on her behalf on March 7, 2018. Alred initially called Finkelstein at random to obtain assistance in contacting the Dougherty County Public Defender’s Office because she had been unsuccessful in her own attempts to do so while incarcerated. Finkelstein then drafted an email to that office on January 8, 2018, but received no response. And even after Love filed her entry of appearance on January 10, 2018, Alred was unable to contact Love via telephone due to a standard practice in the public defender’s office that prohibited answering or accepting phone calls from incarcerated individuals. On February 20, 2018, Alred again contacted Finkelstein because—although she now knew Love was her appointed attorney—she had not yet been contacted by Love. As a result, Finkelstein again contacted the public defender’s office via email on Alred’s behalf. Love then visited Alred the following day, but Finkelstein also met with Alred after Love explained to Alred that she would enter into a guilty plea in April but would remain incarcerated until that time. Thus, Finkelstein made his own entry of appearance on March 7, 2018, and Love obtained an order relieving her of any further obligations to Alred on March 15, 2018. Following his entry of appearance, Finkelstein filed a motion for bond, and on March 18, 2018, the State consented to an order for a recognizance bond for Alred. Thereafter, Alred accepted a negotiated plea to reduced counts of two misdemeanors with a total sentence of 18 months’ probation and a $100 fine. In addition to the foregoing, Finkelstein averred that after receiving a copy of Alred’s file from the circuit defender on August 18, 2018, he learned, inter alia, that on Alred’s application for representation by the Dougherty County Public Defender’s Office, she provided her correct and current mailing address. Further, in handwriting different from Alred’s, the name of the assigned judge was written on the application along with the name “Carmen,” and Carmen Love was one of two public defenders assigned to the judge’s courtroom. Additionally, although a document in the public defender office’s file showed a notation of “calendar call” for June 28, 2017, and a trial date of July 10, 2017, as of those dates, Love still had not filed an entry of appearance on Alred’s behalf. Based on these facts, Finkelstein stated his opinion that Love breached the standard of care owed to Alred by (1) violating Uniform Superior Court Rule 4.2 regarding filing an entry of appearance,[11] (2) failing to inform the court that Alred’s notice to appear was sent to the wrong address, (3) failing to visit Alred earlier, (4) failing to inform the assigned prosecutor that Alred did not receive notice of the calendar call, (5) failing to investigate the allegations against Alred, and (6) failing to provide Alred with copies of the pleadings. Finkelstein further stated his opinion that Love’s employer breached its standard of care by (1) failing to ensure that Love filed an entry of appearance, (2) failing to ensure that Love met with Alred after she requested a meeting, (3) refusing to accept calls from incarcerated individuals, and (4) not requiring attorneys, such as Love, to provide a current email address and telephone number on the state bar directory. In response to Alred’s claims, GPDC asserted, inter alia, that the suit was barred by sovereign immunity and proceeded to file a motion to dismiss on this same basis. In support, GPDC argued that sovereign immunity barred the claims (1) under the false-arrest and false-imprisonment exception, and (2) because Alred had no valid written contract for representation. On February 3, 2021, the trial court granted the motion to dismiss. It did so after concluding that Alred was not making a tort claim of false arrest or false imprisonment but, instead, that sovereign immunity barred her claims for professional negligence and legal malpractice because those claims were based upon discretionary functions. This appeal follows. Alred argues the trial court erred in granting the motion to dismiss by concluding that—even though it was never argued by the GPDC—the complained-of acts were excepted from the Georgia Tort Claims Act as discretionary functions. In response, GPDC agrees the trial court erred in granting the motion to dismiss on the ground that the acts were discretionary functions,[12] but nevertheless maintains that we should affirm because the false-imprisonment and false-arrest exceptions of the GTCA do apply.[13] We turn now to these contentions. Under the Georgia Constitution, the sovereign immunity of our state “may be waived only as provided by the [General Assembly] in a tort claims act or an act of the [General Assembly] which specifically provides that sovereign immunity is waived and the extent of such waiver.”[14] And under this authority, our General Assembly enacted the GTCA, which provides, in relevant part, that [t]he state waives its sovereign immunity for the torts of state officers and employees while acting within the scope of their official duties or employment and shall be liable for such torts in the same manner as a private individual or entity would be liable under like circumstances; provided, however, that the state’s sovereign immunity is waived subject to all exceptions and limitations set forth in this article.[15] One exception to the general GTCA waiver provides that the State is not liable for losses resulting from “[a]ssault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, or interference with contractual rights[.]“[16] And as previously noted, the trial court concluded that this exception did not apply so as to bar Alred’s suit, instead granting the motion to dismiss on another exception. But on appeal, GPDC relies solely on the false-imprisonment and false-arrest exceptions of the GTCA to justify its motion to dismiss being granted.[17] This argument is a nonstarter. The trial court correctly concluded that the false-imprisonment and false-arrest exceptions of the GTCA do not bar Alred’s claims. Once again, Alred was incarcerated after the trial court issued a bench warrant for her arrest when she failed to appear for a calendar call, and the trial court was permitted to issue such a warrant by law.[18] Indeed, the court clerk’s office mailed notice of the calendar call to Alred’s former address, which was the address the clerk’s office had on file. But Alred argues that the professional negligence of Love and her employer resulted in (1) Love’s failure to receive notice about the calendar call and inform Alred of same; (2) Love’s failure to appear at the calendar call on Alred’s behalf; (3) Alred’s incarceration and inability to explain to the trial court why she failed to appear at the calendar call; and (4) Love’s failure to notice that the clerk’s office had an outdated address for Alred.[19] Thus, Alred does not contend that she was unlawfully arrested or held, and the trial court correctly denied the motion to dismiss on this ground.[20] But despite correctly finding that the false-imprisonment and false-arrest exceptions do not bar Alred’s claims, the trial court went on to conclude that Love’s actions constituted discretionary functions, and thus, Alred’s claims were barred by sovereign immunity on that basis—even though GPDC never made such an argument. And we agree with both Love and GPDC that the trial court erred in granting the motion to dismiss on this basis. Under the GTCA, a “discretionary function or duty” is “a function or duty requiring a state officer or employee to exercise his or her policy judgment in choosing among alternate courses of action based upon a consideration of social, political, or economic factors.”[21] And the GTCA further provides that “[t]he state shall have no liability for losses resulting from[ ] . . . [t]he exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a state officer or employee, whether or not the discretion involved is abused[.]“[22] So, in order for the “discretionary function” exception to apply, “it must be shown that a state officer or employee was afforded discretion with respect to the conduct that is alleged to amount to a tort, [and] that an exercise of the discretion afforded amounts to a policy judgment based upon a consideration of social, political, or economic factors.”[23] In this case, Alred argues that her claims do not fall under the ambit of “discretionary duties or functions,” while GPDC contends the trial court prematurely based its decision on this conclusion when it purposefully did not raise this argument because the record is undeveloped in this regard. And because we agree with GPDC that the record is undeveloped on this question, we reverse the trial court’s grant of the motion to dismiss on this basis and remand for further proceedings consistent with this opinion.[24] Judgment reversed and case remanded. Mercier, J., and Senior Appellate Judge Herbert E. Phipps, concur.
