dissenting.
Officer Ingram appeals a negative declaratory judgment in which the trial court concluded that his employer, the City, had no duty to defend him in a federal lawsuit brought by Williams because the actions complained of were not within the seope of Officer Ingram's employment. The majority reverses the trial court's judgment, but because I disagree with both the standard of review and the ultimate result, I respectfully dissent.
"Pursuant to the Uniform Declaratory Judgment Act, declaratory orders, judgments and decrees have the force and effect of final judgments and are reviewed as any other order, judgment or decree."2 Ember v. Ember, 720 N.E.2d 436, 438-39 (Ind.Ct.App.1999) (citations omitted). "When, as here, a trial court enters a general judgment with no findings of fact, we presume the judgment is based on findings supported by the evidence. Our standard of review in such cases is limited, and we must affirm the trial court's judgment if it can be sustained on any legal theory supported by the evidence." Plesha v. Edmonds, 717 N.E.2d 981, 986 (Ind.Ct.App.1999), trans. denied (2000) (citations omitted).
The sole issue in the instant case is whether the City has a duty to defend Officer Ingram in his federal civil lawsuit, *1150a duty that exists only if the actions complained of in the lawsuit "were] taken within the scope and arising out of the performance of official duties and responsibilities." Inpranapouts, Inp., Rev. Cop® or tHe Consom City amp County, § 292-1.3 The majority characterizes the question of whether Officer Ingram's actions are within the seope of employment as one of law to be reviewed de movo by this court because "the parties agree upon the facts," but well-settled law seems to indicate otherwise.
"If some of the employee's actions were authorized, the question of whether the unauthorized acts were within the scope of employment is one for the [trier of fact ]." Southport Little League v. Vaughan, 734 N.E.2d 261, 268 (Ind.Ct.App.2000), trans. denied (2001) (emphasis added).4 It cannot be denied that at least some of the actions alleged in Williams' federal complaint are outside the seope of Officer Ingram's employment, such as "inquir[ing] about lap dances and negotiat{ing] with [her] for a lap dance," and giving her a breathalyzer test and "falsely inform[ing] her that it registered at two times the legal limit." Therefore, the question is one of fact, and one on which Officer Ingram and the City most certainly did not agree.
Keeping in mind that "we presume the judgment is based on findings supported by the evidence" and that we "must affirm the trial court's judgment if it can be sustained on any legal theory supported by the evidence," Plesha, 717 N.E.2d at 986, we must review the record for evidence to support a finding that Officer Ingram was acting outside the scope of employment. If such evidence can be found, we must presume that the trial court made that finding. The allegations in Williams' complaint, which the trial court admitted into evidence at the declaratory judgment proceeding, are adequate to support a finding that Officer Ingram was acting outside the scope of his employment,5 which leads una*1151voidably to the conclusion that the City has no duty to defend Officer Ingram in his federal lawsuit. I would therefore affirm the trial court's judgment.
. The majority cites Grzan v. Charter Hosp. of Northwest Indiana, 104 F.3d 116, 119 (7th Cir.1997), for the proposition that "under federal law all well-pleaded allegations in a complaint are accepted as true." Grzan, however, involved the review of a dismissal of a complaint for failure to state a claim. See id.
. The majority interprets the ordinance in question as having purely prospective operation. I cannot agree. The only limit the ordinance places on the duty of the City to defend its employees is that the employee's complained-of actions be within the scope of his employment. I see no reason that this determination could not be made after the civil trial. In any event, because Officer Ingram sought a declaratory judgment against the City before the underlying civil suit went to trial, the retrospective or prospective nature of the ordinance is irrelevant in this case, and we need not reach the issue.
. When "none of the employee's acts were authorized, the maiter is a question of law." Southport Little League, 734 N.E.2d at 268. While one could conclude that none of Officer Ingram's alleged actions were authorized, the result of such a conclusion would be the same as the one I urge in this dissent: that as a matter of law, Officer Ingram's actions would noi have been within the scope of his employment, and the City therefore would have no duty to defend him in a civil suit.
I would also note thai the question of whether one was acting within the scope of employment usually arises in a respondeat superior context when the ultimate question is whether the employer will be liable for the tortious actions of the employee. As Williams did not name the City in her federal complaint, the issue is only whether the City is obligated to defend Officer Ingram. I see no reason to treat this question of fact differently in this context.
. Officer Ingram exercised his right not to testify in the declaratory judgment proceeding, apparently because of pending criminal charges arising out of the same actions complained of by Williams. "Although the refusal to testify in a civil case cannot be used against the one asserting the privilege in a subsequent criminal proceeding, the privilege against self-incrimination does not prohibit the trier of fact in a civil case from drawing adverse inferences from a witness' refusal to testify." Gash v. Kohm, 476 N.E.2d 910, 913 (Ind.Ct.App.1985), trans. denied. Therefore, the trial court was permitted to draw an adverse infer*1151ence from Officer Ingram's decision not to testify.