Appellant Triton Consulting Inc. appeals from the trial court’s order granting summary judgment in favor of Appellees on its breach of contract claim. In four issues, Triton argues the trial court erred in granting summary judgment because (1) the settlement agreement between the parties is an enforceable contract that may be enforced via a breach of contract action, (2) its claim for breach of contract is not a collateral attack on a final judgment, (3) it did not waive its right to pursue a breach of contract action, and (4) it presented evidence on each element of its claim to preclude summary judgment and Appellees failed to present competent summary judgment evidence entitling them to summary judgment. We reverse and remand. Background Appellant Triton Consulting Inc. is a communications consulting firm that “predominantly render[s] services for small government entities” in Texas. Triton is a consultant to the boards of various municipal and special purpose districts such as Municipal Utility Districts (“MUDs”), Emergency Services Districts, and Municipal Management Districts, among others, primarily in Harris, Fort Bend, Denton, and Collin Counties in Texas. According to its founding member, David Aitken IV, Triton’s main function “is to help municipal districts develop communication tools and adopt strategies to improve transparency . . . while bolstering the[ir] . . . communication with the community.” Triton provides its clients with advice “in all matters of public outreach and information dissemination,” including “outreach initiatives, community educational and awareness programs, online presence development, public relations, crisis management, technology development, strategic advisement, and emergency alert services.” At one time, Triton employed five of the six Appellees. Triton hired Appellee Calep Estes as its Information Technology Director in 2014, requiring him to sign a non-disclosure agreement. Triton hired Appellee Simon VanDyk (“Simon”) as an independent contractor in 2016, requiring him to sign both non- compete and non-disclosure agreements. Appellee Coleen Culpepper was hired as Triton’s Administrative Director in 2018. And in 2017, Triton hired Appellee Michael Willett as its Content Manager and Customer Service Representative, requiring him to sign both non-compete and non-disclosure agreements. Appellee Laura VanDyk (“Laura”), Simon’s wife, formed and registered Appellee Touchstone District Services, LLC with the Texas Secretary of State in June 2018. Touchstone is in direct competition with Triton. In July 2018, Simon, Willett, Estes, and Culpepper resigned from Triton and began to work for Touchstone. Triton claims that after their resignations, it “uncovered spoliated evidence demonstrating [that Appellees had] breached their respective non- disclosure agreements, duplicated all Triton server data and documents, and misappropriated [Triton's] trade secrets and other confidential and proprietary information.” A. The 2018 Lawsuit In 2018, Triton sued Appellees Simon, Laura, Willett, Estes, Culpepper, and Touchstone[1] for breach of contract, tortious interference, misappropriation of confidential information, theft of trade secrets, unfair competition, and civil conspiracy (“2018 Lawsuit”).[2] Triton successfully sought a temporary restraining order and, subsequently, a temporary injunction that prohibited Appellees from, among other things, “[s]oliciting business with the clients of [Triton] for the purposes of establishing or continuing a commercial relationship involving the provision of services of the same type provided by [Triton]” and “ [p]roposing to enter into business with the clients or prospective clients of [Triton] to provide services of the same type provided by [Triton] using [Triton's] confidential and property information.” Trial began on June 24, 2019. During a recess on June 25, 2019, the parties announced they had “reached an agreement for a resolution of the case” and had ”settled this case.”[3] The parties then dictated the terms of their settlement into the record: Mr. Rosenberg:[4] So there are two components — several components of the settlement. The first is a cash payment jointly and severally from all the defendants to the plaintiffs in the amount of $200,000, payable as follows: $40,000 within 90 days, and then after that, $160,000 payable monthly within three years. The approximate monthly amount is 4,444.44. There’s going to be an agreement — or an agreement on the part of the defendants jointly and severally not to solicit any current clients of Triton, and we will put that in the formalized settlement agreement. There will be a held agreed judgment, meaning that it will not be filed upon the record of the papers of the cause unless there is a breach, and the parties will exercise their remedies for that. There is a continuing agreement on the part of the defendants, jointly and severally, not to use any of plaintiff’s property or confidential proprietary information to the extent they have any. And obviously, last is the Court would retain jurisdiction to enforce the settlement. Mr. Martin:[5] Two — add two more provisions as well, too. So the parties have agreed that the settlement agreement, the terms, and the agreed judgment are all to be confidential and only disclosure will be allowed by the parties is that the case has been resolved and the case has been settled. Another provision is that there will be a non-disparagement provision amongst the parties Mr. Rosenberg: Ms. Garcia-Martin:6[6] Mutual. Mr. Martin: Mutual. Mr. Martinez:[7] — mutual non-disparagement provision with the parties. Mr. Martin: Which — but does allow the parties to tell whoever is inquiring that the lawsuit has been resolved. And the last thing is that there will be no prepayment penalty should the defendants wish to pay the entire balance of the agreed settlement beforehand. . . . Mr. Martinez: Mr. Rosenberg: And the — the injunction not to solicit is pursuant to certain terms. Can you say this by a case? Pursuant to Texas law, there’s a case out of the Fourteenth Court of Appeals called Athens, A-T-H-E-N-S.[8] I don’t have the citation, but the word “solicit” was recently defined by the Fourteenth Court of Appeals in that case. Mr. Martinez: And lastly, the term of the non-solicit is for one year, starting when? The date of the — would be this morning and start today. Mr. Rosenberg: Make it easier, 365 days, starting — today is Day 0, and tomorrow is Day 1? Correct. Mr. Martinez: And on the release itself — it will be a full release of all the defendants of all current causes of actions and any known or unknown causes of action. Mr. Rosenberg: Counterclaims as well. Mr. Martin: Correctly. [sic] Mr. Rosenberg: That’s it. Mr. Martin: Mutual releases. Mr. Rosenberg: Yes. Mr. Martinez: All right. Does this reach the — is this is the entire — entirety of the agreement between the parties? Mr. Rosenberg: Yes. The Court: Mr. Rosenberg: Mr. Martin: Well, we will now paper the settlement agreement, Your Honor. The Court: Mr. Martin: Correct, but it’s — it’s on the record. I’m going to pronounce it — render a judgment here on the record as dictated so I want to make sure you dictated all the terms in its entirety here on the record. Do you want to draft the settlement?
