This was simply too late and Scarborough is deemed to have waived any objections he might have had to the jury charge. See Luster v. Moore, 78 So.2d 87 (Fla. 1955); City of Sunrise v. Bradshaw, 470 So.2d 804 (Fla. 4th DCA 1985); Page v. Cory Corp., 347 So.2d 817 (Fla. 3d DCA 1977). There was no showing that the jury was confused by the instructions or that the verdict was against the manifest weight of the evidence, so it was error to reinstruct the jury and resubmit the issue of unjust enrichment for the jury's determination. Therefore, the original verdict as rendered by the jury herein must be reinstated.

The principal point of the appellant on appeal is the giving of a certain jury instruction. However, no objection to the instruction was made and therefore the error (not being of a fundamental nature) was not preserved. Middelveen v. Sibson Realty, Inc. 417 So.2d 275 (Fla. 5th DCA 1982); Lollie v. General Motors Corporation, 407 So.2d 613 (Fla. 1st DCA 1982); Page v. Cory Corporation, 347 So.2d 817 (Fla. 3d DCA 1977). By cross appeal the appellees urge error in the failure to award prejudgment interest.

By that time it was too late to change the instructions. As the court said in Page v. Cory Corp., 347 So.2d 817, 818 (Fla. 3d DCA 1977): An objection to an instruction given to the jury after the jurors have already retired to deliberate is untimely and cannot be considered on appeal. Luster v. Moore, 78 So.2d 87 (Fla. 1955).

A careful review of the record in the light of the points raised on this appeal from the consequent judgment shows that the defendant city has failed to demonstrate that harmful error in fact occurred or that it preserved its present contentions to that effect below. Hercules, Inc. v. Coto, 434 So.2d 4 (Fla. 3d DCA 1983), rev. denied, 441 So.2d 632 (Fla. 1983); Sears Roebuck Co. v. Jackson, 433 So.2d 1319 (Fla. 3d DCA 1983); Stowe v. Walker Builders Supply, Inc., 431 So.2d 180 (Fla. 2d DCA 1983); Metropolitan Dade County v. Brill, 414 So.2d 626 (Fla. 3d DCA 1982); Page v. Cory Corp., 347 So.2d 817 (Fla. 3d DCA 1977). We likewise find that the lower court's order assessing prejudgment interest, entered pursuant to a stipulated reservation of jurisdiction for that purpose after the city had taken this appeal from the final judgment, was both procedurally and substantively correct.

On the record before us, appellants have failed to preserve and demonstrate reversible error regarding the jury instructions taken as a whole. Arnold v. Taco Properties, Inc., 427 So.2d 216, 219-20 (Fla. 1st DCA 1983); Page v. Cory Corp., 347 So.2d 817 (Fla. 3d DCA 1977); Frankowitz v. Beck, 257 So.2d 918, 919 (Fla. 3d DCA 1972); Henningsen v. Smith, 174 So.2d 85 (Fla. 2d DCA 1965). This case is distinguishable from and thus not governed by LaRussa v. Vetro, 254 So.2d 537 (Fla. 1971).

Although we might have found some merit in appellants' contention that the instruction went too far in defining their burden, we decline to address the issue because it was not properly preserved. See, Henningsen v. Smith, 174 So.2d 85 (Fla. 2d DCA 1965); Page v. Cory Corp., 347 So.2d 817 (Fla. 3d DCA 1977). The challenged instruction was as follows:

Although not objected to by the defendant, and not preserved as reversible error on appeal, this improper remark heightened the effect of subsequent remarks implying the insurance company was acting in bad faith in this litigation, without any basis or grounds for such a view point. Page v. Cory Corporation, 347 So.2d 817 (Fla. 3d DCA 1977); Sears, Roebuck Company v. McAfoos, 303 So.2d 336 (Fla. 3d DCA 1974). During his closing argument counsel for Bushy said, "I want you to send a message to Erie, Pennsylvania, that you can't defend a case by coming down here and just subtly hinting that we don't owe it and it must have been something else. Send a message to those people and let them know that they are going to have to pay a penalty."

At the conclusion of the instructions given, no objection was stated in the record by either counsel and it was not until the jury retired to begin its deliberations that objection was made. This case is very similar in its facts to Page v. Cory Corp., 347 So.2d 817 (Fla. 3rd DCA 1977), where counsel for one of the parties objected to the giving of a comparative negligence charge to the jury after the jury had retired. The Third District Court of Appeal held that since counsel did not object to the charges until the jury was in the process of considering its verdict, the objection was not timely and could not be considered on appeal.